Common use of Realization Upon Portfolio Assets Clause in Contracts

Realization Upon Portfolio Assets. (a) Consistent with the applicable Loan Agreement or Participation Agreement, the Portfolio Asset Servicer will monitor efforts of each Counterparty Lender or Underlying Servicer with respect to any Eligible Portfolio Asset as to which no satisfactory arrangements can be made for collection of delinquent payments, and any analysis by such Counterparty Lender or Underlying Servicer proposing a course of action to maximize value with respect to any related Underlying Collateral, including whether to hold for value, sell or transfer any equity or other securities it has received in connection with a default, workout, restructuring or plan of reorganization with respect to the related Underlying Loan Obligations. After the occurrence and during the continuance of an Event of Default, the Portfolio Asset Servicer will comply with the applicable Loan Agreement and Participation Agreement and Applicable Law in directing a Counterparty Lender or Underlying Servicer to realize upon Underlying Collateral, and employ practices and procedures, to direct the related Counterparty Lender or Underlying Servicer to enforce the obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale. (b) Notwithstanding anything to the contrary herein, the Facility Servicer shall not take any action with respect to the Collateral Portfolio, nor shall it be required to take any actions, relating to any special servicing activities (it being understood and agreed that the Facility Servicer shall determine whether any obligations or actions of the Facility Servicer expressly set forth in this Agreement or the other Transaction Documents shall constitute special servicing activities), except to the extent (i) agreed to between the Loan Parties, the Lenders and the Facility Servicer, pursuant to a separate fee letter agreement and (ii) the parties to such fee agreement agree to address any conflicts presented by such performance of special servicing activities reasonably requested by the Facility Servicer.

Realization Upon Portfolio Assets. (a) The Portfolio Asset Servicer will use commercially reasonable efforts consistent with the Servicing Standard to foreclose upon or repossess, as applicable, or otherwise comparably convert the ownership of any Underlying Collateral relating to a defaulted Portfolio Asset of the Borrower as to which no satisfactory arrangements can be made for collection of delinquent payments, and may, consistent with the Servicing Standard and exercising its reasonably good faith judgment to maximize value, hold for value, sell or transfer any equity or other securities shall have received in connection with a default, workout, restructuring or plan of reorganization with respect to such Portfolio Asset. The Portfolio Asset Servicer will comply with the Servicing Standard and Applicable Law in realizing upon such Underlying Collateral, and employ practices and procedures including commercially reasonable efforts consistent with the Servicing Standard to enforce all obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale in circumstances other than those described in the preceding sentence. Without limiting the generality of the foregoing, unless the Administrative Agent (acting at the direction of the Majority Lenders) or, to the extent no Event of Default is then continuing, the Borrower has specifically given instruction to the contrary, the Portfolio Asset Servicer may cause the sale of any such Underlying Collateral to the Portfolio Asset Servicer or its Affiliates for a purchase price equal to the then fair value thereof, any such sale to be evidenced by a certificate of a Responsible Officer of the Portfolio Asset Servicer delivered to the Administrative Agent and the Borrower setting forth the Portfolio Asset, the Underlying Collateral, the sale price of the Underlying Collateral and certifying that such sale price is the fair value of such Underlying Collateral. In any case in which any such Underlying Collateral has suffered damage, the Portfolio Asset Servicer will have no obligation to expend funds in connection with any repair or toward the foreclosure or repossession of such Underlying Collateral. The Portfolio Asset Servicer will remit to the Collection Accounts, the Recoveries received in connection with the sale or disposition of Underlying Collateral relating to a defaulted Portfolio Asset. (b) Consistent with the Servicing Standard and the applicable Loan Participation Agreement or Participation Underlying Agreement, the Portfolio Asset Servicer will monitor efforts of each Counterparty Lender or Underlying Servicer Agent with respect to any Eligible Portfolio Asset as to which no satisfactory arrangements can be made for collection of delinquent payments, and any analysis by such Counterparty Lender or Underlying Servicer Agent proposing a course of action to maximize value with respect to any related Underlying Collateral, including whether to hold for value, sell or transfer any equity or other securities it has received in connection with a default, workout, restructuring or plan of reorganization with respect to the related Underlying Loan Obligations. After the occurrence and during the continuance of an Event of Default, the Portfolio Asset Servicer will comply with the Servicing Standard, the applicable Loan Participation Agreement and Participation or Underlying Agreement and Applicable Law in directing a Counterparty Lender or Underlying Servicer Agent to realize upon Underlying Collateral, and employ practices and procedures, including commercially reasonable efforts consistent with the Servicing Standard to enforce all obligations of such Counterparty Lender under such Participation Agreement, to direct the related Counterparty Lender or Underlying Servicer Agent to enforce the obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale. (bc) Notwithstanding anything to the contrary herein, the Facility Servicer Administrative Agent and the Calculation Agent shall not take any action with respect to the Collateral PortfolioCollateral, nor shall it be required to take any actions, relating to any special servicing activities (it being understood and agreed that the Facility Servicer Calculation Agent or the Administrative Agent shall determine whether any obligations or actions of the Facility Servicer Calculation Agent or the Administrative Agent expressly set forth in this Agreement or the other Transaction Documents shall constitute special servicing activities), except to the extent (i) agreed to between the Loan PartiesBorrower, the Lenders Lenders, the Calculation Agent and the Facility ServicerAdministrative Agent, pursuant to a separate fee letter agreement and (ii) the parties to such fee agreement agree to address any conflicts presented by such performance of special servicing activities reasonably requested by the Facility ServicerCalculation Agent and the Administrative Agent including the following provisions: (A) if the Administrative Agent agrees to perform such special servicing activities on behalf of the Lenders, the Portfolio Asset Servicer shall not be required to take any direction or instruction from, or provide any workout or other information determined by the Administrative Agent to, the Borrower; or (B) if the Calculation Agent agrees to perform such special servicing activities on behalf of the Borrower, the Administrative Agent shall not be required to take any direction or instruction from, or provide any workout or other information determined by the Calculation Agent to, the Lenders.

Realization Upon Portfolio Assets. (a) Consistent with the applicable Loan Agreement or Participation Agreement, the The Portfolio Asset Servicer will monitor use commercially reasonable efforts consistent with the Servicing Standard to foreclose upon or repossess, as applicable, or otherwise comparably convert the ownership of each Counterparty Lender or any Underlying Servicer with respect Collateral relating to any Eligible a defaulted Portfolio Asset of the Borrower as to which no satisfactory arrangements can be made for collection of delinquent payments, and any analysis by such Counterparty Lender or Underlying Servicer proposing a course of action may, consistent with the Servicing Standard and exercising its reasonably good faith judgment to maximize value with respect to any related Underlying Collateralvalue, including whether to hold for value, sell or transfer any equity or other securities it has shall have received in connection with a default, workout, restructuring or plan of reorganization with respect to the related Underlying Loan Obligationssuch Portfolio Asset. After the occurrence and during the continuance of an Event of Default, the The Portfolio Asset Servicer will comply with the applicable Loan Agreement and Participation Agreement Servicing Standard and Applicable Law in directing a Counterparty Lender or Underlying Servicer to realize realizing upon such Underlying Collateral, and employ practices and procedures, to direct procedures including commercially reasonable efforts consistent with the related Counterparty Lender or Underlying Servicer Servicing Standard to enforce the all obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private salesale in circumstances other than those described in the preceding sentence. Without limiting the generality of the foregoing, unless the Administrative Agent (acting at the direction of the Majority Lenders) or, to the extent no Event of Default is then continuing, the Borrower has specifically given instruction to the contrary, the Portfolio Asset Servicer may cause the sale of any such Underlying Collateral to the Portfolio Asset Servicer or its Affiliates for a purchase price equal to the then fair value thereof, any such sale to be evidenced by a certificate of a Responsible Officer of the Portfolio Asset Servicer delivered to the Administrative Agent and the Borrower setting forth the Portfolio Asset, the Underlying Collateral, the sale price of the Underlying Collateral and certifying that such sale price is the fair value of such Underlying Collateral. In any case in which any such Underlying Collateral has suffered damage, the Portfolio Asset Servicer will have no obligation to expend funds in connection with any repair or toward the foreclosure or repossession of such Underlying Collateral. The Portfolio Asset Servicer will remit to the Collection Accounts, the Recoveries received in connection with the sale or disposition of Underlying Collateral relating to a defaulted Portfolio Asset. (b) Consistent with the Servicing Standard and the applicable Participation Agreement or Underlying Agreement, the Portfolio Asset Servicer will monitor efforts of each Counterparty Lender or Underlying Agent with respect to any Portfolio Asset as to which no satisfactory arrangements can be (c) Notwithstanding anything to the contrary herein, the Facility Servicer Administrative Agent and the Calculation Agent shall not take any action with respect to the Collateral PortfolioCollateral, nor shall it be required to take any actions, relating to any special servicing activities (it being understood and agreed that the Facility Servicer Calculation Agent or the Administrative Agent shall determine whether any obligations or actions of the Facility Servicer Calculation Agent or the Administrative Agent expressly set forth in this Agreement or the other Transaction Documents shall constitute special servicing activities), except to the extent (i) agreed to between the Loan PartiesBorrower, the Lenders Lenders, the Calculation Agent and the Facility ServicerAdministrative Agent, pursuant to a separate fee letter agreement and (ii) the parties to such fee agreement agree to address any conflicts presented by such performance of special servicing activities reasonably requested by the Facility ServicerCalculation Agent and the Administrative Agent including the following provisions: (A) if the Administrative Agent agrees to perform such special servicing activities on behalf of the Lenders, the Portfolio Asset Servicer shall not be required to take any direction or instruction from, or provide any workout or other information determined by the Administrative Agent to, the Borrower; or (B) if the Calculation Agent agrees to perform such special servicing activities on behalf of the Borrower, the Administrative Agent shall not be required to take any direction or instruction from, or provide any workout or other information determined by the Calculation Agent to, the Lenders.

Realization Upon Portfolio Assets. (a) Consistent with For the applicable Loan Agreement or Participation avoidance of doubt and notwithstanding anything to the contrary in this Agreement, the Servicer shall only exercise rights to realize upon Portfolio Asset Assets upon the occurrence and during the continuance of an Event of Default. Following the occurrence and during the continuance of an Event of Default, the Servicer will monitor use reasonable efforts consistent with the Servicing Standard and the Equity Investment Agreement to exercise available remedies (which may include foreclosing upon or repossessing, as applicable, or otherwise comparably converting the ownership of each Counterparty Lender or Underlying Servicer with respect any Portfolio Asset) relating to any Eligible a defaulted Portfolio Asset as to which no satisfactory arrangements can be made for the collection of delinquent payments, and any analysis by such Counterparty Lender or Underlying Servicer proposing a course of action may, consistent with the Servicing Standard and exercising its reasonably good faith judgment to maximize value with respect to any related Underlying Collateralvalue, including whether to hold for value, sell or transfer any equity or other securities it has shall have received in connection with a default, workout, restructuring or plan of reorganization with respect to the related Underlying Loan Obligationssuch Portfolio Asset. After the occurrence and during the continuance of an Event of Default, the Portfolio Asset The Servicer will comply with the applicable Loan Agreement and Participation Agreement Servicing Standard and Applicable Law in directing a Counterparty Lender or Underlying Servicer to realize realizing upon Underlying Collateralsuch Portfolio Asset, and employ practices and procedures, to direct procedures including commercially reasonable efforts consistent with the related Counterparty Lender or Underlying Servicer Servicing Standard to enforce the all obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral Portfolio Asset at public or private sale. (b) sale in circumstances other than those described in the preceding sentence. Without limiting the generality of the foregoing, unless the Majority Lenders have specifically given instruction to the contrary, the Servicer may cause the sale of any such Portfolio Asset to the Servicer or its Affiliates for a purchase price equal to the then fair value thereof, any such sale to be evidenced by a certificate of a Responsible Person of the Servicer delivered to the Lenders setting forth the Portfolio Asset, the Portfolio Asset, the sale price of the Portfolio Asset and certifying that such sale price is the fair value of such Portfolio Asset. In any case in which any such Portfolio Asset has suffered damage, the Servicer will have no obligation to expend funds in connection with any repair or toward the foreclosure or repossession of such Portfolio Asset. The Servicer will remit to the Collection Account the recoveries received in connection with the sale or disposition of Portfolio Asset relating to a defaulted Portfolio Asset. Notwithstanding anything to the contrary herein, the Facility Servicer shall not take any action with respect to the Collateral PortfolioPortfolio Assets, nor shall it be required to take any actions, relating to any special servicing activities (it being understood and agreed that the Facility Servicer shall determine whether any obligations or actions of the Facility Servicer expressly set forth in this Agreement or the other Transaction Documents shall constitute special servicing activities), except to the extent (i) agreed to between the Loan Parties, the Lenders and the Facility Servicer, pursuant to a separate fee letter agreement and (ii) the parties to such fee agreement agree to address any conflicts presented by such performance of special servicing activities reasonably requested by the Facility Servicer.USActive 58800445.158806140.10 -116- SK 28388 0001 10656366 v3

Realization Upon Portfolio Assets. (a) The Portfolio Asset Servicer will use commercially reasonable efforts consistent with the Servicing Standard to foreclose upon or repossess, as applicable, or otherwise comparably convert the ownership of any Underlying Collateral relating to a defaulted Portfolio Asset of the Borrower as to which no satisfactory arrangements can be made for collection of delinquent payments, and may, consistent with the Servicing Standard and exercising its reasonably good faith judgment to maximize value, hold for value, sell or transfer any equity or other securities shall have received in connection with a default, workout, restructuring or plan of reorganization with respect to such Portfolio Asset. The Portfolio Asset Servicer will comply with the Servicing Standard and Applicable Law in realizing upon such Underlying Collateral, and employ practices and procedures including commercially reasonable efforts consistent with the Servicing Standard to enforce all obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale in circumstances other than those described in the preceding sentence. Without limiting the generality of the foregoing, unless the Administrative Agent (acting at the direction of the Majority Lenders) or, to the extent no Event of Default is then continuing, the Borrower has specifically given instruction to the contrary, the Portfolio Asset Servicer may cause the sale of any such Underlying Collateral to the Portfolio Asset Servicer or its Affiliates for a purchase price equal to the then fair value thereof, any such sale to be evidenced by a certificate of a Responsible Officer of the Portfolio Asset Servicer delivered to the Administrative Agent and the Borrower setting forth the Portfolio Asset, the Underlying Collateral, the sale price of the Underlying Collateral and certifying that such sale price is the fair value of such Underlying Collateral. In any case in which any such Underlying Collateral has suffered damage, the Portfolio Asset Servicer will have no obligation to expend funds in connection with any repair or toward the foreclosure or repossession of such Underlying Collateral. The Portfolio Asset Servicer will remit to the Collection Account, the Recoveries received in connection with the sale or disposition of Underlying Collateral relating to a defaulted Portfolio Asset. (b) Consistent with the Servicing Standard and the applicable Loan Participation Agreement or Participation Underlying Agreement, the Portfolio Asset Servicer will monitor efforts of each Counterparty Lender or Underlying Servicer Agent with respect to any Eligible Portfolio Asset as to which no satisfactory arrangements can be made for collection of delinquent payments, and any analysis by such Counterparty Lender or Underlying Servicer Agent proposing a course of action to maximize value with respect to any related Underlying Collateral, including whether to hold for value, sell or transfer any equity or other securities it has received in connection with a default, workout, restructuring or plan of reorganization with respect to NAI-15121569431515895953v1213 -97- the related Underlying Loan Obligations. After the occurrence and during the continuance of an Event of Default, the Portfolio Asset Servicer will comply with the Servicing Standard, the applicable Loan Participation Agreement and Participation or Underlying Agreement and Applicable Law in directing a Counterparty Lender or Underlying Servicer Agent to realize upon Underlying Collateral, and employ practices and procedures, including commercially reasonable efforts consistent with the Servicing Standard to enforce all obligations of such Counterparty Lender under such Participation Agreement, to direct the related Counterparty Lender or Underlying Servicer Agent to enforce the obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale. (bc) Notwithstanding anything to the contrary herein, the Facility Servicer Administrative Agent and the Calculation Agent shall not take any action with respect to the Collateral PortfolioCollateral, nor shall it be required to take any actions, relating to any special servicing activities (it being understood and agreed that the Facility Servicer Calculation Agent or the Administrative Agent shall determine whether any obligations or actions of the Facility Servicer Calculation Agent or the Administrative Agent expressly set forth in this Agreement or the other Transaction Documents shall constitute special servicing activities), except to the extent (i) agreed to between the Loan PartiesBorrower, the Lenders Lenders, the Calculation Agent and the Facility ServicerAdministrative Agent, pursuant to a separate fee letter agreement and (ii) the parties to such fee agreement agree to address any conflicts presented by such performance of special servicing activities reasonably requested by the Facility ServicerCalculation Agent and the Administrative Agent including the following provisions: (A) if the Administrative Agent agrees to perform such special servicing activities on behalf of the Lenders, the Portfolio Asset Servicer shall not be required to take any direction or instruction from, or provide any workout or other information determined by the Administrative Agent to, the Borrower; or (B) if the Calculation Agent agrees to perform such special servicing activities on behalf of the Borrower, the Administrative Agent shall not be required to take any direction or instruction from, or provide any workout or other information determined by the Calculation Agent to, the Lenders.

Realization Upon Portfolio Assets. (a) The Portfolio Asset Servicer will use commercially reasonable efforts consistent with the Servicing Standard to foreclose upon or repossess, as applicable, or otherwise comparably convert the ownership of any Underlying Collateral relating to a defaulted Portfolio Asset of the Borrower as to which no satisfactory arrangements can be made for collection of delinquent payments, and may, consistent with the Servicing Standard and exercising its reasonably good faith judgment to maximize value, hold for value, sell or transfer any equity or other securities shall have received in connection with a default, workout, restructuring or plan of reorganization with respect to such Portfolio Asset. The Portfolio Asset Servicer will comply with the Servicing Standard and Applicable Law in realizing upon such Underlying Collateral, and employ practices and procedures including commercially reasonable efforts consistent with the Servicing Standard to enforce all obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale in circumstances other than those described in the preceding sentence. Without limiting the generality of the foregoing, unless the Administrative Agent (acting at the direction of the Majority Lenders) or, to the extent no Event of Default is then continuing, the Borrower has specifically given instruction to the contrary, the Portfolio Asset Servicer may cause the sale of any such Underlying Collateral to the Portfolio Asset Servicer or its Affiliates for a purchase price equal to the then fair value thereof, any such sale to be evidenced by a certificate of a Responsible Officer of the Portfolio Asset Servicer delivered to the Administrative Agent and the Borrower setting forth the Portfolio Asset, the Underlying Collateral, the -84- sale price of the Underlying Collateral and certifying that such sale price is the fair value of such Underlying Collateral. In any case in which any such Underlying Collateral has suffered damage, the Portfolio Asset Servicer will have no obligation to expend funds in connection with any repair or toward the foreclosure or repossession of such Underlying Collateral. The Portfolio Asset Servicer will remit to the Collection Account, the Recoveries received in connection with the sale or disposition of Underlying Collateral relating to a defaulted Portfolio Asset. (b) Consistent with the Servicing Standard and the applicable Loan Participation Agreement or Participation Underlying Agreement, the Portfolio Asset Servicer will monitor efforts of each Counterparty Lender or Underlying Servicer Agent with respect to any Eligible Portfolio Asset as to which no satisfactory arrangements can be made for collection of delinquent payments, and any analysis by such Counterparty Lender or Underlying Servicer Agent proposing a course of action to maximize value with respect to any related Underlying Collateral, including whether to hold for value, sell or transfer any equity or other securities it has received in connection with a default, workout, restructuring or plan of reorganization with respect to the related Underlying Loan Obligations. After the occurrence and during the continuance of an Event of Default, the Portfolio Asset Servicer will comply with the Servicing Standard, the applicable Loan Participation Agreement and Participation or Underlying Agreement and Applicable Law in directing a Counterparty Lender or Underlying Servicer Agent to realize upon Underlying Collateral, and employ practices and procedures, including commercially reasonable efforts consistent with the Servicing Standard to enforce all obligations of such Counterparty Lender under such Participation Agreement, to direct the related Counterparty Lender or Underlying Servicer Agent to enforce the obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale. (bc) Notwithstanding anything to the contrary herein, the Facility Servicer Administrative Agent and the Calculation Agent shall not take any action with respect to the Collateral PortfolioCollateral, nor shall it be required to take any actions, relating to any special servicing activities (it being understood and agreed that the Facility Servicer Calculation Agent or the Administrative Agent shall determine whether any obligations or actions of the Facility Servicer Calculation Agent or the Administrative Agent expressly set forth in this Agreement or the other Transaction Documents shall constitute special servicing activities), except to the extent (i) agreed to between the Loan PartiesBorrower, the Lenders Lenders, the Calculation Agent and the Facility ServicerAdministrative Agent, pursuant to a separate fee letter agreement and (ii) the parties to such fee agreement agree to address any conflicts presented by such performance of special servicing activities reasonably requested by the Facility ServicerCalculation Agent and the Administrative Agent including the following provisions: (A) if the Administrative Agent agrees to perform such special servicing activities on behalf of the Lenders, the Portfolio Asset Servicer shall not be required to take any direction or instruction from, or provide any workout or other information determined by the Administrative Agent to, the Borrower; or (B) if the Calculation Agent agrees to perform such special servicing activities on behalf of the Borrower, the Administrative Agent shall not be required to take any direction or instruction from, or provide any workout or other information determined by the Calculation Agent to, the Lenders.

Realization Upon Portfolio Assets. (a) The Portfolio Asset Servicer will use commercially reasonable efforts consistent with the Servicing Standard to foreclose upon or repossess, as applicable, or otherwise comparably convert the ownership of any Underlying Collateral relating to a defaulted Portfolio Asset of the Borrower as to which no satisfactory arrangements can be made for collection of delinquent payments, and may, consistent with the Servicing Standard and exercising its reasonably good faith judgment to maximize value, hold for value, sell or transfer any equity or other securities shall have received in connection with a default, workout, restructuring or plan of reorganization with respect to such Portfolio Asset. The Portfolio Asset Servicer will comply with the Servicing Standard and Applicable Law in realizing upon such Underlying Collateral, and employ practices and procedures including commercially reasonable efforts consistent with the Servicing Standard to enforce all obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale in circumstances other than those described in the preceding sentence. Without limiting the generality of the foregoing, unless the Administrative Agent (acting at the direction of the Majority Lenders) or, to the extent no Event of Default is then continuing, the Borrower has specifically given instruction to the contrary, the Portfolio Asset Servicer may cause the sale of any such Underlying Collateral to the Portfolio Asset Servicer or its Affiliates for a purchase price equal to the then fair value thereof, any such sale to be evidenced by a certificate of a Responsible Officer of the Portfolio Asset Servicer delivered to the Administrative Agent and the Borrower setting forth the Portfolio Asset, the Underlying Collateral, the sale price of the Underlying Collateral and certifying that such sale price is the fair value of such Underlying Collateral. In any case in which any such Underlying Collateral has suffered damage, the Portfolio Asset Servicer will have no obligation to expend funds in connection with any repair or toward the foreclosure or repossession of such Underlying Collateral. The Portfolio Asset Servicer will remit to the Collection Account, the Recoveries received in connection with the sale or disposition of Underlying Collateral relating to a defaulted Portfolio Asset. (b) Consistent with the Servicing Standard and the applicable Loan Participation Agreement or Participation Underlying Agreement, the Portfolio Asset Servicer will monitor efforts of each Counterparty Lender or Underlying Servicer Agent with respect to any Eligible Portfolio Asset as to which no satisfactory arrangements can be made for collection of delinquent payments, and any analysis by such Counterparty Lender or Underlying Servicer Agent proposing a course of action to maximize value with respect to any related Underlying Collateral, including whether to hold for value, sell or transfer any equity or other securities it has received in connection with a default, workout, restructuring or plan of reorganization with respect to the related Underlying Loan Obligations. After the occurrence and during the continuance of an Event of Default, the Portfolio Asset Servicer will comply with the Servicing Standard, the applicable Loan Participation Agreement and Participation or Underlying Agreement and Applicable Law in directing a Counterparty Lender or Underlying Servicer Agent to realize upon Underlying Collateral, and employ practices and procedures, including commercially reasonable efforts consistent with the Servicing Standard to enforce all obligations of such Counterparty Lender under such Participation Agreement, to direct the related Counterparty Lender or Underlying Servicer Agent to enforce the obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale. (bc) Notwithstanding anything to the contrary herein, the Facility Servicer Administrative Agent and the Calculation Agent shall not take any action with respect to the Collateral PortfolioCollateral, nor shall it be required to take any actions, relating to any special servicing activities (it being understood and agreed that the Facility Servicer Calculation Agent or the Administrative Agent shall determine whether any obligations or actions of the Facility Servicer Calculation Agent or the Administrative Agent expressly set forth in this Agreement or the other Transaction Documents shall constitute special servicing activities), except to the extent (i) agreed to between the Loan PartiesBorrower, the Lenders Lenders, the Calculation Agent and the Facility ServicerAdministrative Agent, pursuant to a separate fee letter agreement and (ii) the parties to such fee agreement agree to address any conflicts presented by such performance of special servicing activities reasonably requested by the Facility ServicerCalculation Agent and the Administrative Agent including the following provisions: (A) if the Administrative Agent agrees to perform such special servicing activities on behalf of the Lenders, the Portfolio Asset Servicer shall not be required to take any direction or instruction from, or provide any workout or other information determined by the Administrative Agent to, the Borrower; or (B) if the Calculation Agent agrees to perform such special servicing activities on behalf of the Borrower, the Administrative Agent shall not be required to take any direction or instruction from, or provide any workout or other information determined by the Calculation Agent to, the Lenders.

Realization Upon Portfolio Assets. (a) Consistent with the Servicing Standard and the applicable Loan Underlying Agreement or Participation Agreement, the Portfolio Asset Servicer will monitor efforts of each Counterparty Lender or Underlying Servicer with respect to any Eligible Portfolio Loan Asset as to which no satisfactory arrangements can be made for collection of delinquent payments, and any analysis by such Counterparty Lender Lender, Underlying Agent or Underlying Servicer Servicer, as applicable, proposing a course of action to maximize value with respect to any related Underlying Collateral, including whether to hold for value, sell or transfer any equity or other securities it has received in connection with a default, workout, restructuring or plan of reorganization with respect to the related Underlying Loan Portfolio Obligations. After the occurrence and during the continuance of an Event of Default, the Portfolio Asset Servicer will comply with the Servicing Standard, the applicable Loan Agreement and Participation Agreement and Applicable Law in directing a Counterparty Lender Lender, Underlying Agent or Underlying Servicer Servicer, as applicable, to realize upon Underlying Collateral, and employ practices and procedures, to direct the related Counterparty Lender Lender, or Underlying Servicer Agent to enforce the obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale. (b) Notwithstanding anything to the contrary herein, the Administrative Agent and Facility Servicer shall not be required to take any action with respect to the Collateral Portfolio, nor shall it be required to take any actions, relating to any special servicing activities (it being understood and agreed that Administrative Agent or the Facility Servicer Servicer, as applicable, shall determine whether any obligations or actions of the Administrative Agent or Facility Servicer Servicer, as applicable, expressly set forth in this Agreement or the other Transaction Documents shall constitute special servicing activities), except to the extent (i) agreed to between the Loan PartiesBorrower, the Lenders and the Facility Servicer, pursuant to a separate fee letter agreement and (ii) the parties to such fee agreement agree to address any conflicts presented by such performance of special servicing activities reasonably requested by the Administrative Agent and the Facility Servicer.

Realization Upon Portfolio Assets. (a) The Portfolio Asset Servicer will use commercially reasonable efforts consistent with the Servicing Standard to foreclose upon or repossess, as applicable, or otherwise comparably convert the ownership of any Underlying Collateral relating to a defaulted Portfolio Asset of the Borrower as to which no satisfactory arrangements can be made for collection of delinquent payments, and may, consistent with the Servicing Standard and exercising its reasonably good faith judgment to maximize value, hold for value, sell or transfer any equity or other securities shall have received in connection with a default, workout, restructuring or plan of reorganization with respect to such Portfolio Asset. The Portfolio Asset Servicer will comply with the Servicing Standard and Applicable Law in realizing upon such Underlying Collateral, and employ practices and procedures including commercially reasonable efforts consistent with the Servicing Standard to enforce all obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale in circumstances other than those described in the preceding sentence. Without limiting the generality of the foregoing, unless the Administrative Agent (acting at the direction of the Majority Lenders) or, to the extent no Event of Default is then continuing, the Borrower has specifically given instruction to the contrary, the Portfolio Asset Servicer may cause the sale of any such Underlying Collateral to the Portfolio Asset Servicer or its Affiliates for a purchase price equal to the then fair value thereof, any such sale to be evidenced by a certificate of a Responsible Officer of the Portfolio Asset Servicer delivered to the Administrative Agent and the Borrower setting forth the Portfolio Asset, the Underlying Collateral, the sale price of the Underlying Collateral and certifying that such sale price is the fair value of such Underlying Collateral. In any case in which any such Underlying Collateral has suffered damage, the Portfolio Asset Servicer will have no obligation to expend funds in connection with any repair or toward the foreclosure or repossession of such Underlying Collateral. The Portfolio Asset Servicer will remit to the Collection AccountAccounts, the Recoveries received in connection with the sale or disposition of Underlying Collateral relating to a defaulted Portfolio Asset. (b) Consistent with the Servicing Standard and the applicable Loan Participation Agreement or Participation Underlying Agreement, the Portfolio Asset Servicer will monitor efforts of each Counterparty Lender or Underlying Servicer Agent with respect to any Eligible Portfolio Asset as to which no satisfactory arrangements can be made for collection of delinquent payments, and any analysis by such Counterparty Lender or Underlying Servicer Agent proposing a course of action to maximize value with respect to any related Underlying Collateral, including whether to hold for value, sell or transfer any equity or other securities it has received in connection with a default, workout, restructuring or plan of reorganization with respect to the related Underlying Loan Obligations. After the occurrence and during the continuance of an Event of Default, the Portfolio Asset Servicer will comply with the Servicing Standard, the applicable Loan Participation Agreement and Participation or Underlying Agreement and Applicable Law in directing a Counterparty Lender or Underlying Servicer Agent to realize upon Underlying Collateral, and employ practices and procedures, including commercially reasonable efforts consistent with the Servicing Standard to enforce all obligations of such Counterparty Lender under such Participation Agreement, to direct the related Counterparty Lender or Underlying Servicer Agent to enforce the obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale. (bc) Notwithstanding anything to the contrary herein, the Facility Servicer Administrative Agent and the Calculation Agent shall not take any action with respect to the Collateral PortfolioCollateral, nor shall it be required to take any actions, relating to any special servicing activities (it being understood and agreed that the Facility Servicer Calculation Agent or the Administrative Agent shall determine whether any obligations or actions of the Facility Servicer Calculation Agent or the Administrative Agent expressly set forth in this Agreement or the other Transaction Documents shall constitute special servicing activities), except to the extent (i) agreed to between the Loan PartiesBorrower, the Lenders Lenders, the Calculation Agent and the Facility ServicerAdministrative Agent, pursuant to a separate fee letter agreement and (ii) the parties to such fee agreement agree to address any conflicts presented by such performance of special servicing activities reasonably requested by the Facility ServicerCalculation Agent and the Administrative Agent including the following provisions: (A) if the Administrative Agent agrees to perform such special servicing activities on behalf of the Lenders, the Portfolio Asset Servicer shall not be required to take any direction or instruction from, or provide any workout or other information determined by the Administrative Agent to, the Borrower; or (B) if the Calculation Agent agrees to perform such special servicing activities on behalf of the Borrower, the Administrative Agent shall not be required to take any direction or instruction from, or provide any workout or other information determined by the Calculation Agent to, the Lenders.

Realization Upon Portfolio Assets. (a) Consistent with For the applicable Loan Agreement or Participation avoidance of doubt and notwithstanding anything to the contrary in this Agreement, the Servicer shall only exercise rights to realize upon Portfolio Asset Assets upon the occurrence and during the continuance of an Event of Default. Following the occurrence and during the continuance of an Event of Default, the Servicer will monitor use reasonable efforts consistent with the Servicing Standard and the Equity Investment Agreement to exercise available remedies (which may include foreclosing upon or repossessing, as applicable, or otherwise comparably converting the ownership of each Counterparty Lender or Underlying Servicer with respect any Portfolio Asset) relating to any Eligible a defaulted Portfolio Asset as to which no satisfactory arrangements can be made for the collection of delinquent payments, and any analysis by such Counterparty Lender or Underlying Servicer proposing a course of action may, consistent with the Servicing Standard and exercising its reasonably good faith judgment to maximize value with respect to any related Underlying Collateralvalue, including whether to hold for value, sell or transfer any equity or other securities it has shall have received in connection with a default, workout, restructuring or plan of reorganization with respect to the related Underlying Loan Obligationssuch Portfolio Asset. After the occurrence and during the continuance of an Event of Default, the Portfolio Asset The Servicer will comply with the applicable Loan Agreement and Participation Agreement Servicing Standard and Applicable Law in directing a Counterparty Lender or Underlying Servicer to realize realizing upon Underlying Collateralsuch Portfolio Asset, and employ practices and procedures, to direct procedures including commercially reasonable efforts consistent with the related Counterparty Lender or Underlying Servicer Servicing Standard to enforce the all obligations of Obligors by foreclosing upon, repossessing and causing the sale of such Underlying Collateral Portfolio Asset at public or private sale. (b) Notwithstanding anything sale in circumstances other than those described in the preceding sentence. Without limiting the generality of the foregoing, unless the Majority Lenders have specifically given instruction to the contrary hereincontrary, the Facility Servicer shall not take may cause the sale of any action with respect such Portfolio Asset to the Collateral PortfolioServicer or its Affiliates for a purchase price equal to the then fair value thereof, nor shall it any such sale to be required to take any actions, relating to any special servicing activities (it being understood and agreed that the Facility Servicer shall determine whether any obligations or actions evidenced by a certificate of a Responsible Person of the Facility Servicer expressly set forth in this Agreement or the other Transaction Documents shall constitute special servicing activities), except delivered to the extent (i) agreed to between Lenders setting forth the Loan PartiesPortfolio Asset, the Lenders Portfolio Asset, the sale price of the Portfolio Asset and certifying that such sale price is the Facility Servicerfair value of such Portfolio Asset. In any case in which any such Portfolio Asset has suffered damage, pursuant the Servicer will have no obligation to a separate fee letter agreement and (ii) expend funds in connection with any repair or toward the parties foreclosure or repossession of such Portfolio Asset. The Servicer will remit to such fee agreement agree to address any conflicts presented by such performance the Collection Account the recoveries received in connection with the sale or disposition of special servicing activities reasonably requested by the Facility Servicer.Portfolio Asset -120- USActive 58806140.10 -120-60444631.4 SK 28388 0001 10656366 v3