Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space. (b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register. (c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source. (d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C31), Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C31)
Access to Certain Information. (a) Upon ten days 10 days' prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicerextent such items are in its possession), the Special Servicer (with respect to the items in clauses (cd), (de), (f), (g), (h) and (i) below) , to the extent such those items are in its possession possession) and the Trustee (with respect to the items in clauses (ba) and through (i) below and any other itemsbelow, to the extent those items are in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the TrusteeMaster Servicer, the Master Special Servicer or the Special ServicerTrustee, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)therein, the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, Depositor originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s 's Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared by the Special Servicer pursuant to Section 3.21(d3.21(c), (h) the Servicing File relating to each Mortgage Loan Loan, and (i) any and all Officer’s 's Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and payment of reasonable copying costs but shall be provided to any of the Rating Agencies and the Controlling Class Representative (and with respect to a Loan Combination, the related Non-Trust Noteholder(s)) at no cost pursuant to their reasonable requests. The Master Servicer, Special Servicer and Trustee may each satisfy its obligations under this Section 3.15(a) by making such items available for review on its Internet Website with the use of a password. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class RepresentativeRepresentative (and in the case of a Loan Combination, the related Non-Trust Noteholder(s)), in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners Owners, Certificateholders and the Controlling Class Representative, a confirmation Representative (which and in the case of a Loan Combination, the Controlling Class Representative may be related Non-Trust Noteholder(s)), a standing confirmation) confirmation executed by the requesting Person substantially in the form of Exhibit K-1 I-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable, and which may provide indemnification for the Master Servicer, the Special Servicer and the Trustee) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that any such Certificate Owner Owner, any such Certificateholder and the Controlling Class Representative (and in the case of a Loan Combination, the related Non-Trust Noteholder(s)) may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 I-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable, and which may provide indemnification for the Master Servicer or Trustee, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Certificate Owners and Holders of the Certificates, by their -148- acceptance thereof, and the Controlling Class RepresentativeRepresentative (and in the case of a Loan Combination, the related Non-Trust Noteholder(s)), by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, Trustee or the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available on an unrestricted basis and without a password via the Trustee’s, 's or the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement's, as applicable, Internet Website or has previously been filed with the Securities and Exchange Commission, and the Trustee, Trustee or the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available without a password via the Trustee’s, 's or the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement's, as applicable, Internet Website or has previously been filed with the Securities and Exchange Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificateholder, access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion HoldersCertificateholders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicabletransferees, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, may but is not required to, make available on or prior to the Distribution Date in each month to the general public any interested party on their respective Internet Websites (i) the Distribution Date Statement via their respective Internet Websites, and (ii) as a convenience for the general public, the Prospectus Supplementthis Agreement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet WebsitesProspectus Supplement. In addition, on each Distribution Date, the Trustee shall make available each month, on each Distribution Date, to any interested party via the Trustee's Internet Website the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond Level File and the CMSA Collateral Summary File to File, in each case for such Distribution Date, and any other information at the general public on its Internet Website (on a password protected basis)request of the Depositor. The Trustee shall, upon written request, shall make available each month, on each Distribution Date, Date (i) the Restricted Servicer Reports, Reports and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any via the Trustee's Internet Website with the use of a password (or other Person upon comparable restricted access mechanism) provided by the direction of the DepositorTrustee. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, reports and files comprising the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. Investor Reporting Package.
(New York City timec) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s 's Internet Website or the Master Servicer’s 's Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimerdisclaimer and may otherwise adopt reasonable rules and procedures that may include, to the extent the Master Servicer or Trustee, as applicable, deems necessary or appropriate, conditioning access on the execution and delivery of an agreement (which may be in the form of Exhibit I-1 or I-2 (or such other form as may be reasonably acceptable to the Trustee or the Master Servicer, as applicable)) governing the availability, use and disclosure of such information and providing indemnification to the Master Servicer or Trustee, as applicable, for any liability or damage that may arise therefrom. The Master Servicer and Trustee may, in accordance with such reasonable rules and procedures as each may adopt (including conditioning access on the execution and delivery of an agreement (which may be in the form of Exhibit I-1 or I-2 (or such other form as may be reasonably acceptable to the Trustee or the Master Servicer, as applicable)) governing the availability, use and disclosure of information and providing indemnification to the Master Servicer or Trustee, as applicable, for any liability or damage that may arise therefrom), also make available, through its Internet Website or otherwise, any additional information relating to the Mortgage Loans, the Mortgaged Properties or the Mortgagors for review by any Persons to whom the Master Servicer or Trustee, as applicable, believes such disclosure is appropriate, in each case except to the extent doing so is prohibited by applicable law or by the related Mortgage Loan (in the case of Trustee, if it has actual knowledge of such prohibition by the related Mortgage Loan). Notwithstanding anything in this Agreement to the contrary, the Master Servicer and the Trustee may withhold (other than with respect to items required to be delivered under this Agreement to the Controlling Class Representative (and, in the case of a Loan Combination, the related Non-Trust Noteholder(s)) any information not yet included in a Form 8-K Current Report filed with the Securities and Exchange Commission or otherwise made publicly available with respect to which the Trustee or the Master Servicer has determined that such withholding is appropriate. Any transmittal of information by the Master Servicers or the Trustee to any Person other than the Rating Agencies or the Depositor may be accompanied by a letter containing the following provision: "By receiving the information set forth herein, you hereby acknowledge and agree that the United States securities laws restrict any person who possesses material, non-public information regarding the Trust that issued Xxxxxxx Xxxxx Mortgage Trust 2005-CKI1, Commercial Mortgage Pass-Through Certificates, Series 2005-CKI1, from purchasing or selling such Certificates in circumstances where the other party to the transaction is not also in possession of such information. You also acknowledge and agree that such information is being provided to you for the purposes of, and such information may be used only in connection with, evaluation by you -150- or another Certificateholder or prospective purchaser of such Certificates or beneficial interest therein".
(d) If three or more Holders or the Controlling Class Representative (hereinafter referred to as “"Applicants” " with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to the Trustee, and such application states that the Applicants’ ' desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 five Business Days after the receipt of such application, send, at the Applicants’ ' expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Cki1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Cki1)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession The Trustee and the Trustee (with respect Custodian shall each afford to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments theretoUnderwriters, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this AgreementServicer, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners Subordinate Class Representative and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Majority Subordinate Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificate Owner, access to any records documentation regarding the Mortgage Loans and or the servicing thereof other assets of the Trust Fund that are in its possession or within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer Trustee or the Special ServicerCustodian, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, Certificate Administrator shall make available on or prior to any Privileged Person (except as described in item (vi) below) the following items via the Certificate Administrator’s Website, in each case to the Distribution Date in each month extent such items are prepared by the Certificate Administrator or are delivered to the general public Certificate Administrator in electronic format via electronic mail in accordance with Section 12.06:
(i) the Distribution Date Statement via their respective Internet Websitesfollowing documents, which shall be made available under a tab or heading designated “deal documents”:
(iiA) as a convenience for the general publicProspectus, the Prospectus Supplement, the Prospectus Private Placement Memorandum and this Agreement on their respective Internet Websites and (iii) any other items at disclosure document relating to the request of Certificates, in the form most recently provided to the Certificate Administrator by the Depositor via their respective Internet Websites. In addition, or by any Person designated by the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website Depositor;
(on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (iB) the Restricted Servicer Reportsthis Agreement, and any amendments and exhibits hereto;
(ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer mayfollowing documents, but is not required towhich shall be made available under a tab or heading designated “SEC filings”:
(A) each report on Form 10-D, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided Form 10-K or Form 8-K that has been filed by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders Certificate Administrator with respect to their rights the Trust through the EXXXX system (within one Business Day of filing);
(iii) the following documents, which shall be made available under this Agreement a tab or under heading designated “periodic reports”:
(A) the Certificates and is accompanied by a copy of Distribution Date Statements pursuant to Section 4.02(a);
(B) the communication which such Applicants propose to transmitCREFC reports prepared by, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expenseor delivered to, the written communication proffered by the Applicants Certificate Administrator, together with any information or documentation attached thereto or provided therewith pursuant to all Certificateholders at their addresses as they appear in the Certificate Register.Section 3.12, Section 4.02(c), Section 4.02(d), Section 4.02(e) and Section 4.02(f);
(cC) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.each Trust Advisor Annual Report;
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2012-Lc5), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2012-Lc5)
Access to Certain Information. (a) Upon ten days prior written noticeThe Trustee and the Custodian shall each afford to the Depositor, the Master Servicer (with respect to the items in clauses (a)Underwriters, (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the each Master Servicer), each Primary Servicer, the Special Servicer (with respect Servicer, the Controlling Class Representative and each Rating Agency and to the items in clauses (c)OTS, (d)the FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or Certificate Owner, (g), (h) and (i) below) access to any documentation regarding the extent such items Pooled Mortgage Loans or the other assets of the Trust Fund that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to hours at the requesting party, such party having been certified to offices of the Trustee, the Master Servicer Trustee or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special ServicerCustodian, as the case may be, as a prospective transferee designated by it.
(b) The Trustee (or, in the case of any Certificate the items referenced in clause (ix) below, the Custodian, or interest therein or a Companion Loan or any interest therein in the case of the items referenced in clauses (to the extent such information is related to such Companion Loan or the related Mortgage Loani), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xii), both the Certificate Administrator and the Trustee) shall maintain at its offices or the offices of a Custodian and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Depositor, the Rating Agencies, the Underwriters Certificate Administrator, the Custodian, the Controlling Class Representative and, subject to the succeeding paragraph, any Certificateholder, Certificate Owner or Person identified to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and any applicable regulator (viii), the Certificate Administrator, or potential purchaser specified thereby in the case of the items referenced in clause (xi), both the Certificate Administrator and the DepositorTrustee) as a prospective Transferee of a Certificate or an interest therein, originals or and/or copies of the following items: items (ato the extent such items were prepared by or delivered to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xi), both the Certificate Administrator and the Trustee): (i) the Prospectus, the Private Placement Memorandum and any other disclosure document relating to the Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to the Certificate Administrator since the Closing Date, each Mortgage Loan Purchase Agreement, each Non-Trust Servicing Agreement and any amendments and exhibits hereto or thereto, ; (biii) all Distribution Date Statements Certificate Administrator Reports and any files and reports comprising the CMSA Investor Reporting Package actually delivered or otherwise made available to holders of Certificateholders pursuant to Section 4.02(a) since the relevant Class of Certificates Closing Date; (iv) all Annual Performance Certifications delivered by the Master Servicers and/or the Special Servicer to the Certificate Administrator and the Trustee since the Closing Date and all reports, statements and analyses comparable certifications delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (v) all Annual Accountants' Reports caused to be delivered by the Master Servicers and/or the Special Servicer, respectively, to the Certificate Administrator and the Trustee since the Closing Date and all comparable accountant's reports delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (vi) the most recent inspection report prepared by a Master Servicer or the Special Servicer and delivered to the Trustee in respect of each Mortgaged Property pursuant to Section 3.12(a) (or, in the case of the Mortgaged Property securing a Non-Trust-Serviced Pooled Mortgage Loan, prepared by the comparable servicing party under the related Non-Trust Servicing Agreement and delivered to the Trustee since the Closing Date); (vii) any and all notices and reports delivered to the Trustee with respect to any Mortgaged Property as to which the environmental testing contemplated by Section 3.09(c) revealed that neither of the conditions set forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (viii) all files and reports comprising the CMSA Investor Reporting Package delivered to the Certificate Administrator since the Closing Date pursuant to Section 3.12(c4.02(b), ; (cix) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf each of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09Mortgage Files, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) including any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into or consented to by the a Master Servicer or Special Servicer and delivered to the Asset Status Report prepared Trustee or any Custodian pursuant to Section 3.21(d), 3.20; (h) the Servicing File relating to each Mortgage Loan and (ix) any and all Officer’s 's Certificates and other evidence delivered to or by the Trustee to support its, a Master Servicer or Servicer's, the Special Servicer's or the Fiscal Agent's, as the case may be, to support its determination that any Advance waswas (or, or if made, would be, ) a Nonrecoverable Advance pursuant Advance; (xi) to Sections 3.03(ethe extent not otherwise described in any of the foregoing clauses (i) or 4.03(cthrough (x), including appraisals affixed thereto any and all reports, statements and other written or electronic information relating to a Non-Trust-Serviced Pooled Mortgage Loan, the related Mortgaged Property and/or the related Borrower, to the extent such items were received by the applicable Master Servicer under this Agreement or by any Required Appraisal prepared pursuant party to Section 3.09(a)the related Non-Trust Servicing Agreement and (in either case) delivered to the Trustee since the Closing Date; and (xii) any other information that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act. Copies The Certificate Administrator, the Trustee or the Custodian, as applicable, shall provide, or cause to be provided, copies of any and all of the foregoing items will be available from upon request of any of the Master Servicerparties set forth in the previous sentence; however, the Special Servicer or the Trustee, as except in the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant and the Controlling Class Representative, the Certificate Administrator or the Custodian shall be permitted to their require payment of a sum sufficient to cover the reasonable requestscosts and expenses of providing such copies. In connection with providing providing, or causing to be provided, access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement8.12(b), the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall require: (a) in the case of Certificateholders and Certificate Owners and the Controlling Class RepresentativeOwners, a written confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a beneficial holder Holder or Certificate Owner of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, Certificates and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificateholder or Certificate Owner and the Controlling Class Representative may provide such information to its auditors, legal counsel and regulators and to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to need keep confidential any information received from the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and None of the Special Servicer shall not be required to confirmTrustee, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer Custodian or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee Certificate Administrator shall be liable for the dissemination of providing or disseminating information in accordance with the terms of this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr9), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr10)
Access to Certain Information. (a) Upon ten days prior written noticeThe Trustee and the Custodian shall each afford to the Depositor, the Underwriters, each Master Servicer (with respect Servicer, each Primary Servicer, each Special Servicer, the Controlling Class Representative and each Rating Agency and to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer)OTS, the Special Servicer (with respect FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or Certificate Owner, access to any documentation regarding the items in clauses (c), (d), (g), (h) and (i) below) to Pooled Mortgage Loans or the extent such items other assets of the Trust Fund that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to hours at the requesting party, such party having been certified to offices of the Trustee, the Master Servicer Trustee or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special ServicerCustodian, as the case may be, as a prospective transferee designated by it.
(b) The Trustee (or, in the case of any Certificate the items referenced in clause (ix) below, the Custodian, or interest therein or a Companion Loan or any interest therein in the case of the items referenced in clauses (to the extent such information is related to such Companion Loan or the related Mortgage Loani), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xii), both the Certificate Administrator and the Trustee) shall maintain at its offices or the offices of a Custodian and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Depositor, the Rating Agencies, the Underwriters Certificate Administrator, the Custodian, the Controlling Class Representative and, subject to the succeeding paragraph, any Certificateholder, Certificate Owner or Person identified to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and any applicable regulator (viii), the Certificate Administrator, or potential purchaser specified thereby in the case of the items referenced in clause (xi), both the Certificate Administrator and the DepositorTrustee) as a prospective Transferee of a Certificate or an interest therein, originals or and/or copies of the following items: items (ato the extent such items were prepared by or delivered to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xi), both the Certificate Administrator and the Trustee): (i) the Prospectus, the Private Placement Memorandum and any other disclosure document relating to the Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to the Certificate Administrator since the Closing Date, each Mortgage Loan Purchase Agreement, each Non-Trust Servicing Agreement and any amendments and exhibits hereto or thereto, ; (biii) all Distribution Date Statements Certificate Administrator Reports and any files and reports comprising the CMSA Investor Reporting Package actually delivered or otherwise made available to holders of Certificateholders pursuant to Section 4.02(a) since the relevant Class of Certificates Closing Date; (iv) all Annual Performance Certifications delivered by the Master Servicers and/or the Special Servicers to the Certificate Administrator and the Trustee since the Closing Date and all reports, statements and analyses comparable certifications delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (v) all Annual Accountants' Reports caused to be delivered by the Master Servicers and/or the Special Servicers, respectively, to the Certificate Administrator and the Trustee since the Closing Date and all comparable accountant's reports delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (vi) the most recent inspection report prepared by a Master Servicer or a Special Servicer and delivered to the Trustee in respect of each Mortgaged Property pursuant to Section 3.12(a) (or, in the case of the Mortgaged Property securing a Non-Trust-Serviced Pooled Mortgage Loan, prepared by the comparable servicing party under the related Non-Trust Servicing Agreement and delivered to the Trustee since the Closing Date); (vii) any and all notices and reports delivered to the Trustee with respect to any Mortgaged Property as to which the environmental testing contemplated by Section 3.09(c) revealed that neither of the conditions set forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (viii) all files and reports comprising the CMSA Investor Reporting Package delivered to the Certificate Administrator since the Closing Date pursuant to Section 3.12(c4.02(b), ; (cix) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf each of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09Mortgage Files, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) including any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into or consented to by the a Master Servicer or Special Servicer and delivered to the Asset Status Report prepared Trustee or any Custodian pursuant to Section 3.21(d), 3.20; (h) the Servicing File relating to each Mortgage Loan and (ix) any and all Officer’s 's Certificates and other evidence delivered to or by the Trustee to support its, a Master Servicer Servicer's or the a Special Servicer's, as the case may be, to support its determination that any Advance waswas (or, or if made, would be, ) a Nonrecoverable Advance pursuant Advance; (xi) to Sections 3.03(ethe extent not otherwise described in any of the foregoing clauses (i) or 4.03(cthrough (x), including appraisals affixed thereto any and all reports, statements and other written or electronic information relating to a Non-Trust-Serviced Pooled Mortgage Loan, the related Mortgaged Property and/or the related Borrower, to the extent such items were received by the applicable Master Servicer under this Agreement or by any Required Appraisal prepared pursuant party to Section 3.09(a)the related Non-Trust Servicing Agreement and (in either case) delivered to the Trustee since the Closing Date; and (xii) any other information that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act. Copies The Certificate Administrator, the Trustee or the Custodian, as applicable, shall provide, or cause to be provided, copies of any and all of the foregoing items will be available from upon request of any of the Master Servicerparties set forth in the previous sentence; however, the Special Servicer or the Trustee, as except in the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant and the Controlling Class Representative, the Certificate Administrator or the Custodian shall be permitted to their require payment of a sum sufficient to cover the reasonable requestscosts and expenses of providing such copies. In connection with providing providing, or causing to be provided, access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement8.12(b), the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall require: (a) in the case of Certificateholders and Certificate Owners and the Controlling Class RepresentativeOwners, a written confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a beneficial holder Holder or Certificate Owner of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, Certificates and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificateholder or Certificate Owner and the Controlling Class Representative may provide such information to its auditors, legal counsel and regulators and to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to need keep confidential any information received from the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and None of the Special Servicer shall not be required to confirmTrustee, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer Custodian or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee Certificate Administrator shall be liable for the dissemination of providing or disseminating information in accordance with the terms of this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr18), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession The Trustee and the Trustee (with respect Custodian shall each afford to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments theretoUnderwriters, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this AgreementServicer, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners Subordinate Class Representative and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Majority Subordinate Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificate Owner, access to any records documentation regarding the Mortgage Loans and or the servicing thereof other assets of the Trust Fund that are in its possession or within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer Trustee or the Special ServicerCustodian, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, Certificate Administrator shall make available on or prior to any Privileged Person (except as described in item (vi) below) the following items via the Certificate Administrator’s Website, in each case to the Distribution Date in each month extent such items are prepared by the Certificate Administrator or are delivered to the general public Certificate Administrator in electronic format via electronic mail in accordance with Section 12.06:
(i) the Distribution Date Statement via their respective Internet Websitesfollowing documents, which shall be made available under a tab or heading designated “deal documents”:
(iiA) as a convenience for the general publicProspectus, the Prospectus Supplement, the Prospectus Private Placement Memorandum and this Agreement on their respective Internet Websites and (iii) any other items at disclosure document relating to the request of Certificates, in the form most recently provided to the Certificate Administrator by the Depositor via their respective Internet Websites. In addition, or by any Person designated by the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website Depositor;
(on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (iB) the Restricted Servicer Reportsthis Agreement, and any amendments and exhibits hereto;
(ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer mayfollowing documents, but is not required towhich shall be made available under a tab or heading designated “SEC filings”:
(A) each report on Form 10-D, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided Form 10-K or Form 8-K that has been filed by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders Certificate Administrator with respect to their rights the Trust through the XXXXX system (within one Business Day of filing);
(iii) the following documents, which shall be made available under this Agreement a tab or under heading designated “periodic reports”:
(A) the Certificates and is accompanied by a copy of Distribution Date Statements pursuant to Section 4.02(a);
(B) the communication which such Applicants propose to transmitCREFC reports prepared by, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expenseor delivered to, the written communication proffered by the Applicants Certificate Administrator, together with any information or documentation attached thereto or provided therewith pursuant to all Certificateholders at their addresses as they appear in the Certificate Register.Section 3.12, Section 4.02(c), Section 4.02(d), Section 4.02(e) and Section 4.02(f);
(cC) The Master Servicer and each Trust Advisor Annual Report;
(iv) the Special Servicer shall not be required to confirmfollowing documents, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee which shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer under a tab or the Special Servicer, respectively, for which it is not the original source.heading designated “additional documents”:
(dA) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to summaries of Final Asset Status Reports pursuant to the related Intercreditor Agreement.Section 3.24(a);
(B) inspection reports pursuant to Section 3.12(a); and
(C) Appraisals pursuant to Section 3.09, Section 3.11 or Section 3.19;
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C6), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C6)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession The Trustee and the Trustee (with respect Custodian shall each afford to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments theretoUnderwriters, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this AgreementServicer, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners Subordinate Class Representative and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Majority Subordinate Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificate Owner, access to any records documentation regarding the Mortgage Loans and or the servicing thereof other assets of the Trust Fund that are in its possession or within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer Trustee or the Special ServicerCustodian, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, Certificate Administrator shall make available on or prior to any Privileged Person (except as described in item (vi) below) the following items via the Certificate Administrator’s Website, in each case to the Distribution Date in each month extent such items are prepared by the Certificate Administrator or are delivered to the general public Certificate Administrator in electronic format via electronic mail in accordance with Section 12.06:
(i) the Distribution Date Statement via their respective Internet Websitesfollowing documents, which shall be made available under a tab or heading designated “deal documents”:
(iiA) as a convenience for the general publicProspectus, the Prospectus Supplement, the Prospectus Private Placement Memorandum and this Agreement on their respective Internet Websites and (iii) any other items at disclosure document relating to the request of Certificates, in the form most recently provided to the Certificate Administrator by the Depositor via their respective Internet Websites. In addition, or by any Person designated by the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website Depositor;
(on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (iB) the Restricted Servicer Reportsthis Agreement, and any amendments and exhibits hereto;
(ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer mayfollowing documents, but is not required towhich shall be made available under a tab or heading designated “SEC filings”:
(A) each report on Form 10-D, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided Form 10-K or Form 8-K that has been filed by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders Certificate Administrator with respect to their rights the Trust through the EXXXX system (within one Business Day of filing);
(iii) the following documents, which shall be made available under this Agreement a tab or heading designated “periodic reports”:
(A) the Distribution Date Statements pursuant to Section 4.02(a);
(B) the CREFC reports prepared by, or delivered to, the Certificate Administrator, together with any information or documentation attached thereto or provided therewith pursuant to Section 3.12, Section 4.02(c), Section 4.02(d), Section 4.02(e) and Section 4.02(f);
(C) each Trust Advisor Annual Report;
(iv) the following documents, which shall be made available under a tab or heading designated “additional documents”:
(A) summaries of Final Asset Status Reports pursuant to Section 3.24(a);
(B) inspection reports pursuant to Section 3.12(a); and
(C) Appraisals pursuant to Section 3.09, Section 3.11 or Section 3.19;
(v) the following documents, which shall be made available under a tab or heading designated “special notices”:
(A) notice of final distribution on the Certificates and is accompanied by a copy pursuant to Section 9.01;
(B) notice of termination of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and and/or the Special Servicer shall not be required under Section 7.02;
(C) notice of a Servicer Termination Event with respect to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under pursuant to Section 7.01;
(D) notice of the resignation of any party to this Agreement and notice of the acceptance of appointment to such party, to the extent such notice is prepared or received by the Certificate Administrator pursuant to Section 3.23, Section 3.28(r), Section 5.07(c), Section 6.04, Section 8.06, Section 8.07 or Section 8.11;
(E) Officer’s Certificates supporting the determination that any Advance was (or, if made, would be) a Nonrecoverable Advance pursuant to Section 3.11(h) or Section 4.03(c);
(F) any Special Notice by a Certificateholder that wishes to communicate with others, pursuant to this Agreement;
(G) any assessment of compliance delivered to the Certificate Administrator pursuant to Section 11.13;
(H) any attestation reports delivered to the Certificate Administrator pursuant to Section 11.13;
(I) any reports delivered to the Certificate Administrator by the Trust Advisor in connection with its review of the Special Servicer’s net present value and Appraisal Reduction Amount calculations pursuant to Section 3.28(d) and Section 3.28(e);
(J) any recommendation received by the Certificate Administrator from the Trust Advisor for the termination of the Special Servicer during any period when the Trust Advisor is entitled to make such a recommendation, and any direction of the requisite percentage of the Certificateholders to terminate the Special Servicer in response to such recommendation, pursuant to Section 6.05(c);
(K) any proposal received by the Certificate Administrator from a requisite percentage of Certificateholders for the termination of the Special Servicer during any period when such Certificateholders are entitled to make such a proposal, and any direction of the requisite percentage of the Certificateholders to terminate the Special Servicer in response to such proposal, pursuant to Section 6.05(b); and
(L) any proposal received by the Certificate Administrator from a requisite percentage of Certificateholders for the termination of the Trust Advisor, and any direction of the requisite percentage of the Certificateholders to terminate the Trust Advisor in response to such proposal, pursuant to pursuant to Section 3.28(n);
(vi) the Investor Q&A Forum, which shall be made available under a tab or heading designated “Investor Q&A Forum”, pursuant to Section 8.12(d); and
(vii) the Investor Registry (solely to Certificateholders and Certificate Owners), which shall be made available under a tab or heading designated “Investor Registry”, pursuant to Section 8.12(e). Neither In lieu of the tabs or headings otherwise described above, the Certificate Administrator shall be authorized to use such other headings and labels as it may reasonably determine from time to time. The Certificate Administrator shall make available at its offices, during normal business hours, for review by any Privileged Person who certifies to the Certificate Administrator substantially in the form of Exhibit K-1 hereto (other than a Rating Agency or NRSRO), originals or copies of, among other things, the following items (to the extent such items are in its possession) (except to the extent not permitted by applicable law or under any of the related Mortgage Loan Documents):
(A) any and all notices and reports delivered to the Certificate Administrator with respect to any Mortgaged Property as to which the environmental testing revealed environmental issues;
(B) the most recent annual (or more frequent, if available) operating statements, rent rolls (to the extent such rent rolls have been made available by the related Borrower) and/or lease summaries and retail “sales information,” if any, collected by or on behalf of the Master Servicer nor or the Trustee Special Servicer with respect to each Mortgaged Property;
(C) the Mortgage Files, including any and all modifications, waivers and amendments of the terms of a Mortgage Loan or Serviced Loan Combination entered into or consented by the Master Servicer and/or the Special Servicer and delivered to the Certificate Administrator;
(D) any other information that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act; and
(E) each of the documents made available by the Certificate Administrator via the Certificate Administrator’s Website pursuant to this subsection (b). The Rating Agencies and NRSROs shall be liable for afforded access to the Investor Q&A Forum but shall not be afforded a means to submit questions on the Investor Q&A Forum. The Rating Agencies and NRSROs shall not be afforded access to the Investor Registry. The Depositor, hereby authorizes the Certificate Administrator to make available to Bloomberg Financial Markets, L.P., Txxxx, LLC, Intex Solutions, Inc., Markit Group Limited, Interactive Data Corp., BlackRock Financial Management, Inc. or such other vendor chosen by the Depositor, that submits to the Certificate Administrator a certification in the form of Exhibit Q to this Agreement, all the Distribution Date Statements, CREFC reports and supplemental notices delivered or made available pursuant to this Section 8.12(b) to Privileged Persons; provided, however, that the Certificate Administrator shall not have such authority to the extent such disclosure would violate another provision of this Agreement (including without limitation, any prohibitions on dissemination of information any confidential information, including, without limitation, any Privileged Information).
(c) The Rule 17g-5 Information Provider shall make available to the Rating Agencies and to NRSROs the following items by means of the Rule 17g-5 Information Provider’s Website, provided such items have been delivered to the Rule 17g-5 Information Provider by means of electronic mail in accordance with this Section 3.15(c). The Trustee makes no representations 12.06 (or warranties by such other electronic means as shall be established or approved by the Rule 17g-5 Information Provider or as may be necessary or beneficial, in each case as designated in writing to the accuracy Master Servicer, Special Servicer, Certificate Administrator and Trustee) with “WFRBS 2012-C8” included in the subject line of such electronic mail and with a brief identification of such information in the body of such electronic mail:
(A) Asset Status Reports pursuant to Section 3.24;
(B) environmental reports pursuant to Section 3.09(c);
(C) Appraisals pursuant to Section 3.09, Section 3.11 or completeness Section 3.19;
(D) any assessments of compliance pursuant to Section 11.13;
(E) any attestation reports pursuant to Section 11.13;
(F) any notice relating to the Special Servicer’s determination to take action under this Agreement without receiving Rating Agency Confirmation pursuant to Section 3.27(a);
(G) copies of requests or questions that were submitted by the Rating Agencies to the Master Servicer, the Special Servicer, the Certificate Administrator or Trustee pursuant to Section 3.27;
(H) any requests for Rating Agency Confirmation delivered to the Rule 17g-5 Information Provider pursuant to Section 3.27;
(I) notice of any report, document resignation of the Trustee or the acceptance of appointment by the successor Trustee or merger or consolidation of the Trustee pursuant to Section 8.07;
(J) notice of any resignation of the Certificate Administrator or the acceptance of appointment by the successor Certificate Administrator or merger or consolidation of the Certificate Administrator pursuant to Section 8.07;
(K) Officer’s Certificates supporting determinations relating to Nonrecoverable Advances and notices of a determination to reimburse Nonrecoverable Advances from sources other information made available than principal collections on the Trustee’s Website Mortgage Pool pursuant to Section 3.11(h) and assumes no responsibility therefor. In addition, Section 4.03(c);
(L) all notices of the Trustee, occurrence of a Servicer Termination Event and any notice of the termination of the Master Servicer and or the Special Servicer may disclaim responsibility for any information distributed pursuant to Section 7.01 and Section 7.02;
(M) the Trust Advisor Annual Reports prepared by the TrusteeTrust Advisor pursuant to Section 3.28(a);
(N) certain responses or notices from the parties to this Agreement to information posted on the Certificate Administrator’s Website;
(O) any notice of an amendment of this Agreement to change the procedures related to Rule 17g-5 information pursuant to Section 3.27(h);
(P) any summary of oral communications with the Rating Agencies regarding any of the above written materials or regarding any request for a Rating Agency Confirmation or regarding any of the mortgage loan documents or any matter related to the Certificates, Mortgage Loans, the Serviced Loan Combinations, the related Mortgaged Properties, the related Borrowers or any other matters related to this Agreement or the Intercreditor Agreements related to the Serviced Loan Combinations, pursuant to Section 3.27(g);
(Q) any other information delivered to the Rule 17g-5 Information Provider pursuant to this Agreement; and
(R) the Rating Agency Q&A Forum and Servicer Document Request Tool under Section 8.12(g).
(d) The Certificate Administrator shall make a question-and-answer forum (the “Investor Q&A Forum”) available to Privileged Persons by means of the Certificate Administrator’s Website, where Certificateholders, Certificate Owners and prospective purchasers of Certificates may submit inquiries to the Certificate Administrator relating to the Distribution Date Statement, or to the Master Servicer or the Special Servicer relating to servicing reports prepared by that party, the Mortgage Loans, Serviced Loan Combinations or the Mortgaged Properties, and where Privileged Persons may view previously submitted inquiries and related answers. The Certificate Administrator will forward such inquiries to the appropriate person. The Certificate Administrator, the Master Servicer or the Special Servicer, respectivelyas applicable, for will be required to answer each inquiry, unless it determines that (i) answering the inquiry would not be in the best interests of the Trust and/or the Certificateholders, (ii) answering the inquiry would be in violation of applicable law or the Mortgage Loan Documents, (iii) answering the inquiry would materially increase the duties of, or result in significant additional cost or expense to, the Certificate Administrator, the Master Servicer or the Special Servicer, as applicable, or (iv) answering the inquiry is otherwise not advisable to answer, in which it is case the Certificate Administrator shall not post such inquiry on the original source.
(d) With respect Investor Q&A Forum. The Certificate Administrator shall post the inquiries and related answers on the Investor Q&A Forum, subject to the immediately preceding sentence and subject to and in accordance with this Agreement; provided, however, that posting the inquiries and related answers on the Investor Q&A Forum shall not require a separate delivery of such inquiries and answers to the Rule 17g-5 Information Provider. In addition, no party will post or otherwise disclose direct communications with the Subordinate Class Representative as part of its response to any Companion Loaninquiries. The Investor Q&A Forum may not reflect questions, answers, and other communications which are not submitted through the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant Certificate Administrator’s Website. Answers posted on the Investor Q&A Forum will be attributable only to the related Intercreditor Agreementrespondent, and will not be deemed to be answers from any other person, including the Depositor and the Underwriters. None of the Underwriters, Depositor, any of their respective Affiliates or any other Person will certify as to the accuracy of any of the information posted in the Investor Q&A Forum, and no Person other than the respondent will have any responsibility or liability for the content of any such information.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8)
Access to Certain Information. (a) Upon ten days prior written noticeThe Trustee and the Custodian shall each afford to the Depositor, the Master Servicer (with respect to the items in clauses (a)Underwriters, (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the each Master Servicer), the Special Servicer (with respect to the items in clauses (c)each Primary Servicer, (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the each Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the each Rating Agencies and the Depositor, Agency and to the OTS, the FDIC, the Federal Reserve Board FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificate Owner, access to any records documentation regarding the Pooled Mortgage Loans and or the servicing thereof other assets of the Trust Fund that are in its possession or within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer Trustee or the Special ServicerCustodian, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall(or, and in the Master Servicer maycase of the items referenced in clause (ix) below, but is not required tothe Custodian, make available on or prior to in the Distribution Date case of the items referenced in each month to the general public clauses (i) the Distribution Date Statement via their respective Internet Websites), (ii) as a convenience for the general public), the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at and (viii), the request Certificate Administrator, or in the case of the Depositor via their respective Internet Websites. In additionitems referenced in clause (xii), both the Certificate Administrator and the Trustee) shall maintain at its offices or the offices of a Custodian and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Depositor, the Trustee shall make available each month, on each Distribution DateRating Agencies, the Unrestricted Servicer ReportsCertificate Administrator, the CMSA Loan Periodic Update FileCustodian, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative and, subject to the succeeding paragraph, any Certificateholder, Certificate Owner or Person identified to the Trustee (hereinafter referred to as “Applicants” with a single Person which or, in the case of the items referenced in clause (together with its Affiliatesix) is below, the Holder Custodian, or in the case of more than one Class the items referenced in clauses (i), (ii), (iii) and (viii), the Certificate Administrator, or in the case of Certificates being viewed the items referenced in clause (xi), both the Certificate Administrator and the Trustee) as a single Applicant for these purposes) apply in writing to Trusteeprospective Transferee of a Certificate or an interest therein, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy originals and/or copies of the communication which following items (to the extent such Applicants propose items were prepared by or delivered to transmit, then the Trustee shall(or, within 5 Business Days after in the receipt case of such application, send, at the Applicants’ expenseitems referenced in clause (ix) below, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear Custodian, or in the Certificate Register.
case of the items referenced in clauses (ci), (ii), (iii) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c(viii). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the TrusteeCertificate Administrator, or in the Master Servicer and case of the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described items referenced in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.clause
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr16)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans Corporate Trust Office (or in the case of the TrusteeMortgage Loan File or the information specified in clause (f) below, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in New York City or Minneapolis, Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person person identified by a Certificate Owner or Certificateholder Holder or its designated agent in writing to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)an interest, the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser anyone specified thereby and the Depositor, Depositor originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s 's Certificates delivered by the Master Servicer or to the Special Servicer Trustee since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer Trustee since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Special Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant delivered to Section 3.09the Trustee, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (ig) any and all Officer’s Officers' Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance waswas or, or if made, would be, be a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a)Advance. Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to any of their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, Trustee shall require: (a) in the case of Certificate Owners and the Controlling Class RepresentativeOwners, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 M hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, Certificates and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 N hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws). Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, Trustee pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, 's internet website or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, Trustee shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.this
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), ) and (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (ce), (df), (g), (h) and (i) below) and the Trustee to the extent any such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other itemspossession, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the TrusteeNorwest Bank Minnesota, National Association, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Filesitem (g), which will be maintained at its offices in New York or Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person person identified by a Certificate Owner or Certificateholder Holder or its designated agent in writing to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)an interest, the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser anyone specified thereby and the Depositor, Depositor originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Officers' Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Special Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant delivered to Section 3.09the Master Servicer, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Special Servicer and delivered to the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d)Servicer, (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Officers' Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance waswas or, or if made, would be, be a Nonrecoverable Advance pursuant to Sections 3.03(eAdvance, and (i) any operating statements, budgets, rent rolls or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a)financial statements. Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the TrusteeSpecial Servicer, as the case may be, upon request at the expense of the requesting party and shall be provided to any of the Rating Agencies at no cost pursuant to any of their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, Trustee shall require: (a) in the case of Certificate Owners and the Controlling Class RepresentativeOwners, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 W-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, Certificates and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 W-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws). Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, Trustee pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s 's Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, Trustee shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s 's Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificateholder, access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion HoldersCertificateholders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicabletransferees, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, and reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall will make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer ReportsDistribution Date Statement via the Trustee's Internet Website, electronic bulletin board and fax-on-demand service. In addition, pursuant to the CMSA Loan Setup File terms of one or more written agreements (each an "Internet Disclosure Agreement") that may be entered into after the date hereof, between the Depositor on the one hand and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website Trustee or the Master Servicer’s Internet WebsiteServicer on the other hand, the Trustee or the Master Servicer, as applicablethe case may be, may require registration make available certain information, reports and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders documents with respect to their rights under this Agreement the Mortgage Loans and the transactions contemplated hereby, including, without limitation, the CSSA Loan File Report, the CSSA Property File Report and the reports contemplated by Section 3.12(c), on the Trustee's or under the Certificates and is accompanied by a copy Master Servicer's internet website. None of the communication which such Applicants propose to transmitDepositor, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Trustee possesses any obligation to enter an Internet Disclosure Agreement. Neither The Trustee and the Master Servicer nor will not post or disclose information, reports, data files or documents with respect to the Mortgage Loans and the transactions contemplated hereby unless it is expressly permitted to post such information pursuant to the terms hereof or pursuant to the terms of an Internet Disclosure Agreement. Provided that the each of the Master Servicer, the Special Servicer and the Trustee prepare and disseminate all information and reports pursuant to the terms of this Agreement, none of the Master Servicer, the Special Servicer or the Trustee shall be liable for the dissemination of such information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original sourcereports.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Access to Certain Information. (a) Upon ten days prior written noticeThe Trustee and the Custodian shall each afford to the Depositor, the Master Servicer (with respect to the items in clauses (a)Underwriters, (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the each Master Servicer), each Primary Servicer, the Special Servicer (with respect Servicer, the Controlling Class Representative and each Rating Agency and to the items in clauses (c)OTS, (d)the FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or Certificate Owner, (g), (h) and (i) below) access to any documentation regarding the extent such items Pooled Mortgage Loans or the other assets of the Trust Fund that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to hours at the requesting party, such party having been certified to offices of the Trustee, the Master Servicer Trustee or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special ServicerCustodian, as the case may be, as a prospective transferee designated by it.
(b) The Trustee (or, in the case of any Certificate the items referenced in clause (ix) below, the Custodian, or interest therein or a Companion Loan or any interest therein in the case of the items referenced in clauses (to the extent such information is related to such Companion Loan or the related Mortgage Loani), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xii), both the Certificate Administrator and the Trustee) shall maintain at its offices or the offices of a Custodian and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Depositor, the Rating Agencies, the Underwriters Certificate Administrator, the Custodian, the Controlling Class Representative and, subject to the succeeding paragraph, any Certificateholder, Certificate Owner or Person identified to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and any applicable regulator (viii), the Certificate Administrator, or potential purchaser specified thereby in the case of the items referenced in clause (xi), both the Certificate Administrator and the DepositorTrustee) as a prospective Transferee of a Certificate or an interest therein, originals or and/or copies of the following items: items (ato the extent such items were prepared by or delivered to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xi), both the Certificate Administrator and the Trustee): (i) the Prospectus, the Private Placement Memorandum and any other disclosure document relating to the Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to the Certificate Administrator since the Closing Date, each Mortgage Loan Purchase Agreement, each Non-Trust Servicing Agreement and any amendments and exhibits hereto or thereto, ; (biii) all Distribution Date Statements Certificate Administrator Reports and any files and reports comprising the CMSA Investor Reporting Package actually delivered or otherwise made available to holders of Certificateholders pursuant to Section 4.02(a) since the relevant Class of Certificates Closing Date; (iv) all Annual Performance Certifications delivered by the Master Servicers and/or the Special Servicer to the Certificate Administrator and the Trustee since the Closing Date and all reports, statements and analyses comparable certifications delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (v) all Annual Accountants' Reports caused to be delivered by the Master Servicers and/or the Special Servicer, respectively, to the Certificate Administrator and the Trustee since the Closing Date and all comparable accountant's reports delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (vi) the most recent inspection report prepared by a Master Servicer or the Special Servicer and delivered to the Trustee in respect of each Mortgaged Property pursuant to Section 3.12(a) (or, in the case of the Mortgaged Property securing a Non-Trust-Serviced Pooled Mortgage Loan, prepared by the comparable servicing party under the related Non-Trust Servicing Agreement and delivered to the Trustee since the Closing Date); (vii) any and all notices and reports delivered to the Trustee with respect to any Mortgaged Property as to which the environmental testing contemplated by Section 3.09(c) revealed that neither of the conditions set forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (viii) all files and reports comprising the CMSA Investor Reporting Package delivered to the Certificate Administrator since the Closing Date pursuant to Section 3.12(c4.02(b), ; (cix) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf each of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09Mortgage Files, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) including any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into or consented to by the a Master Servicer or Special Servicer and delivered to the Asset Status Report prepared Trustee or any Custodian pursuant to Section 3.21(d), 3.20; (h) the Servicing File relating to each Mortgage Loan and (ix) any and all Officer’s 's Certificates and other evidence delivered to or by the Trustee to support its, a Master Servicer Servicer's or the Special Servicer's, as the case may be, to support its determination that any Advance waswas (or, or if made, would be, ) a Nonrecoverable Advance pursuant Advance; (xi) to Sections 3.03(ethe extent not otherwise described in any of the foregoing clauses (i) or 4.03(cthrough (x), including appraisals affixed thereto any and all reports, statements and other written or electronic information relating to a Non-Trust-Serviced Pooled Mortgage Loan, the related Mortgaged Property and/or the related Borrower, to the extent such items were received by the applicable Master Servicer under this Agreement or by any Required Appraisal prepared pursuant party to Section 3.09(a)the related Non-Trust Servicing Agreement and (in either case) delivered to the Trustee since the Closing Date; and (xii) any other information that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act. Copies The Certificate Administrator, the Trustee or the Custodian, as applicable, shall provide, or cause to be provided, copies of any and all of the foregoing items will be available from upon request of any of the Master Servicerparties set forth in the previous sentence; however, the Special Servicer or the Trustee, as except in the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant and the Controlling Class Representative, the Certificate Administrator or the Custodian shall be permitted to their require payment of a sum sufficient to cover the reasonable requestscosts and expenses of providing such copies. In connection with providing providing, or causing to be provided, access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement8.12(b), the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall require: (a) in the case of Certificateholders and Certificate Owners and the Controlling Class RepresentativeOwners, a written confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a beneficial holder Holder or Certificate Owner of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, Certificates and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificateholder or Certificate Owner and the Controlling Class Representative may provide such information to its auditors, legal counsel and regulators and to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to need keep confidential any information received from the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and None of the Special Servicer shall not be required to confirmTrustee, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer Custodian or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee Certificate Administrator shall be liable for the dissemination of providing or disseminating information in accordance with the terms of this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr11)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession The Trustee and the Trustee (with respect Custodian shall each afford to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments theretoInitial Purchasers, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this AgreementServicer, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners Subordinate Class Representative and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Majority Subordinate Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificate Owner, access to any records documentation regarding the Mortgage Loans and or the servicing thereof other assets of the Trust Fund that are in its possession or within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer Trustee or the Special ServicerCustodian, as the case may be, designated by it.
(b) The Certificate Administrator shall make available to any Privileged Person (except as described in item (vi) below) the following items via the Certificate Administrator’s Website, in each case to the extent such items are prepared by the Certificate Administrator or are delivered to the Certificate Administrator in electronic format via electronic mail to xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx:
(i) the following documents, which shall be made available under a tab or heading designated “deal documents”:
(A) the Prospectus, the Private Placement Memorandum and any other disclosure document relating to the Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor;
(B) this Agreement, and any amendments and exhibits hereto;
(ii) the following documents, which shall be made available under a tab or heading designated “periodic reports”:
(A) the Distribution Date Statements pursuant to Section 4.02(a);
(B) the CREFC reports prepared by, or delivered to, the Certificate Administrator, together with any information or documentation attached thereto or provided therewith pursuant to Section 3.12, Section 4.02(c), Section 4.02(d), Section 4.02(e) and Section 4.02(f);
(iii) the following documents, which shall be made available under a tab or heading designated “additional documents”:
(A) summaries of Final Asset Status Reports pursuant to Section 3.24(a);
(B) inspection reports pursuant to Section 3.12(a); and
(C) Appraisals pursuant to Section 3.09, Section 3.11 or Section 3.19;
(iv) the following documents, which shall be made available under a tab or heading designated “special notices”:
(A) notice of final distribution on the Certificates pursuant to Section 9.01;
(B) notice of termination of the Master Servicer and/or the Special Servicer under Section 7.02;
(C) notice of an Event of Default with respect to the Master Servicer or the Special Servicer pursuant to Section 7.01;
(D) notice of the resignation of any party to this Agreement and notice of the acceptance of appointment to such party, to the extent such notice is prepared or received by the Certificate Administrator pursuant to Section 3.23, Section 3.28(q), Section 5.07(c), Section 6.04, Section 8.06, Section 8.07 or Section 8.11;
(E) Officer’s Certificates supporting the determination that any Advance was (or, if made, would be) a Nonrecoverable Advance pursuant to Section 3.11(h) or Section 4.03(c);
(F) any Special Notice by a Certificateholder that wishes to communicate with others, pursuant to this Agreement;
(G) any Assessment of Compliance delivered to the Certificate Administrator pursuant to Section 11.12;
(H) any Attestation Reports delivered to the Certificate Administrator pursuant to Section 11.12;
(I) any reports delivered to the Certificate Administrator by the [Trust Advisor] in connection with its review of the Special Servicer’s net present value and Appraisal Reduction Amount calculations pursuant to Section 3.28(d) and Section 3.28(e);
(J) any recommendation received by the Certificate Administrator from the [Trust Advisor] for the termination of the Special Servicer during any period when the [Trust Advisor] is entitled to make such a recommendation, and any direction of the requisite percentage of the Certificateholders to terminate the Special Servicer in response to such recommendation, pursuant to Section 6.05(c);
(K) any proposal received by the Certificate Administrator from a requisite percentage of Certificateholders for the termination of the Special Servicer during any period when such Certificateholders are entitled to make such a proposal, and any direction of the requisite percentage of the Certificateholders to terminate the Special Servicer in response to such proposal, pursuant to Section 6.05(b); and
(L) any proposal received by the Certificate Administrator from a requisite percentage of Certificateholders for the termination of the [Trust Advisor], and any direction of the requisite percentage of the Certificateholders to terminate the [Trust Advisor] in response to such proposal, pursuant to pursuant to Section 3.28(m);
(v) the Investor Q&A Forum, which shall be made available under a tab or heading designated “Investor Q&A Forum”, pursuant to Section 8.12(d); and
(vi) the Investor Registry (solely to Certificateholders and Certificate Owners), which shall be made available under a tab or heading designated “Investor Registry”, pursuant to Section 8.12(e). In lieu of the tabs or headings otherwise described above, the Certificate Administrator shall be authorized to use such other headings and labels as it may reasonably determine from time to time. The TrusteeRating Agencies and NRSROs shall be afforded access to the Investor Q&A Forum but shall not be afforded a means to submit questions on the Investor Q&A Forum. The Rating Agencies and NRSROs shall not be afforded access to the Investor Registry. The Depositor, hereby authorizes the Certificate Administrator to make available to Bloomberg Financial Markets, L.P., Xxxxx, LLC, Intex Solutions, Inc. or such other vendor chosen by the Depositor, that submits to the Certificate Administrator a certification in the form of Exhibit Q to this Agreement, all the Distribution Date Statements, CREFC reports and supplemental notices delivered or made available pursuant to this Section 8.12(b) to Privileged Persons; provided, however, that the Certificate Administrator shall not have such authority to the extent such disclosure would violate another provision of this Agreement (including without limitation, any prohibitions on dissemination of any confidential information, including, without limitation, any Privileged Information).
(c) The Rule 17g-5 Information Provider shall make available to the Rating Agencies and to NRSROs the following items by means of the Rule 17g-5 Information Provider’s Website, provided such items have been delivered to the Rule 17g-5 Information Provider by means of electronic mail to 00x0XxxxxxxxxxxXxxxxxxx@xxxxxxxxxx.xxx (or by such other electronic means as shall be established or approved by the Rule 17g-5 Information Provider or as may be necessary or beneficial) with “WFCM 201[_]-[_]” included in the subject line of such electronic mail and with a brief identification of such information in the body of such electronic mail:
(A) Asset Status Reports pursuant to Section 3.24(a);
(B) environmental reports pursuant to Section 3.09(c);
(C) Appraisals pursuant to Section 3.09, Section 3.11 or Section 3.19;
(D) any Assessments of Compliance pursuant to Section 11.12;
(E) any Attestation Reports pursuant to Section 11.12;
(F) any notice relating to the Special Servicer’s determination to take action under this Agreement without receiving Rating Agency Confirmation pursuant to Section 3.27(a);
(G) copies of requests or questions that were submitted by the Rating Agencies to the Master Servicer, the Special Servicer, the Certificate Administrator or Trustee pursuant to Section 3.27;
(H) any requests for Rating Agency Confirmation delivered to the Rule 17g-5 Information Provider pursuant to Section 3.27;
(I) notice of any resignation of the Trustee or the acceptance of appointment by the successor Trustee or merger or consolidation of the Trustee pursuant to Section 8.07;
(J) notice of any resignation of the Certificate Administrator or the acceptance of appointment by the successor Certificate Administrator or merger or consolidation of the Certificate Administrator pursuant to Section 8.07;
(K) Officer’s Certificates supporting determinations relating to Nonrecoverable Advances and notices of a determination to reimburse Nonrecoverable Advances from sources other than principal collections on the Mortgage Pool pursuant to Section 3.11(h) and Section 4.03(c);
(L) all notices of the occurrence of an Event of Default and any notice of the termination of the Master Servicer or the Special Servicer pursuant to Section 7.01 and Section 7.02;
(M) [the Underwriters may require payment Trust Advisor Annual Reports prepared by the Trust Advisor pursuant to Section 3.28(a);]
(N) certain responses or notices from the Certificateholder parties to this Agreement to information posted on the Certificate Administrator’s Website;
(O) any notice of an amendment of this Agreement to change the procedures related to Rule 17g-5 information pursuant to Section 3.27(h);
(P) any summary of oral communications with the Rating Agencies regarding any of the above written materials or regarding any request for a Rating Agency Confirmation or regarding any of the mortgage loan documents or any matter related to the Certificates, Mortgage Loans, the Partitioned Mortgage Loans, the related Mortgaged Properties, the related Borrowers or any other matters related to this Agreement or the Partition Agreements related to the Partitioned Mortgage Loans, pursuant to Section 3.27(g); and
(Q) any other information delivered to the Rule 17g-5 Information Provider pursuant to this Agreement; and (R) the Rating Agency Q&A Forum and Servicer Document Request Tool under Section 8.12(g).
(d) The Certificate Owner Administrator shall make a question-and-answer forum (the “Investor Q&A Forum”) available to Privileged Persons by means of the Certificate Administrator’s Website, where Certificateholders, Certificate Owners and prospective purchasers of Certificates may submit inquiries to the Certificate Administrator relating to the Distribution Date Statement, or holder of a Companion Loanto the Master Servicer or the Special Servicer relating to servicing reports prepared by that party, the Mortgage Loans, or the Mortgaged Properties, and where Privileged Persons may view previously submitted inquiries and related answers. The Certificate Administrator will forward such inquiries to the appropriate person. The Certificate Administrator, the Master Servicer or the Special Servicer, as applicable, will be required to answer each inquiry, unless it determines that answering the inquiry would not be in the best interests of a sum sufficient to cover the reasonable costs and expenses Trust and/or the Certificateholders, would be in violation of providing any such information applicable law or access pursuant to this Section 3.15 the Mortgage Loan Documents, would materially increase the duties of, or result in significant additional cost or expense to, or at the request ofCertificate Administrator, the Certificateholders Master Servicer or Certificate Owners or prospective transferees or holder of a Companion Loanthe Special Servicer, as applicable, including, without limitation, copy charges andor is otherwise not advisable to answer, in which case the case of Certificateholders or Certificate Owners or holder of a Companion LoanAdministrator shall not post such inquiry on the Investor Q&A Forum. The Certificate Administrator shall post the inquiries and related answers on the Investor Q&A Forum, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior subject to the Distribution Date immediately preceding sentence and subject to and in each month accordance with this Agreement; provided, however, that posting the inquiries and related answers on the Investor Q&A Forum shall not require a separate delivery of such inquiries and answers to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet WebsitesRule 17g-5 Information Provider. In addition, no party will post or otherwise disclose direct communications with the Trustee shall make available each monthSubordinate Class Representative as part of its response to any inquiries. The Investor Q&A Forum may not reflect questions, answers, and other communications which are not submitted through the Certificate Administrator’s Website. Answers posted on each Distribution Datethe Investor Q&A Forum will be attributable only to the respondent, and will not be deemed to be answers from any other person, including the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File Depositor and the CMSA Collateral Summary File to Initial Purchasers. None of the general public on its Internet Website (on a password protected basis). The Trustee shallInitial Purchasers, upon written requestDepositor, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to of their respective Affiliates or any other Person upon will certify as to the direction accuracy of any of the Depositor. information posted in the Investor Q&A Forum, and no Person other than the respondent will have any responsibility or liability for the content of any such information.
(e) The Master Servicer may, but is not required to, Certificate Administrator shall make the “Investor Registry” available each month via its Internet Website (i) to any interested partyCertificateholder and beneficial owner via the Certificate Administrator’s Website. Certificateholders and Certificate Owners may register on a voluntary basis for the Investor Registry and obtain contact information for any other Certificateholder or beneficial owner that has also registered, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, provided that they comply with the use requirements provided for in the other provisions of a password this Agreement.
(f) The Certificate Administrator’s Website shall initially be located at [xxx.xxxxxxx.xxx]. Access shall be provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, Certificate Administrator to any Person otherwise entitled to access such report on the Master Servicer’s Internet WebsitePrivileged Persons. In connection with providing access to the TrusteeCertificate Administrator’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, Certificate Administrator may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the The Certificate Register.
(c) The Master Servicer and the Special Servicer Administrator shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with the terms of this Section 3.15(c)Agreement. The Trustee makes Certificate Administrator shall make no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website such documents and assumes shall assume no responsibility thereforfor them. The Certificate Administrator shall not be deemed to have knowledge of any information posted on its website solely by virtue of such posting. In addition, the Trustee, the Master Servicer and the Special Servicer Certificate Administrator may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source. The Certificate Administrator shall provide Privileged Persons with assistance in using the Certificate Administrator’s Website if they call the Certificate Administrator’s customer service desk, initially available at [__________].
(dg) With respect The Rule 17g-5 Information Provider shall make available, only to any Companion LoanRating Agencies and NRSROs, the Companion Holders shall receive a rating agency question-and-answer forum and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.document request tool (the
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc)
Access to Certain Information. (a) Upon ten days prior written noticeThe Trustee and the Custodian shall each afford to the Depositor, the Master Servicer (with respect to the items in clauses (a)Underwriters, (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the each Master Servicer), the Special Servicer (with respect Servicer, the Controlling Class Representative and each Rating Agency and to the items in clauses (c)OTS, (d)the FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or Certificate Owner, (g), (h) and (i) below) access to any documentation regarding the extent such items Pooled Mortgage Loans or the other assets of the Trust Fund that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to hours at the requesting party, such party having been certified to offices of the Trustee, the Master Servicer Trustee or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special ServicerCustodian, as the case may be, as a prospective transferee designated by it.
(b) The Trustee (or, in the case of any Certificate the items referenced in clause (ix) below, the Custodian, or interest therein or a Companion Loan or any interest therein in the case of the items referenced in clauses (to the extent such information is related to such Companion Loan or the related Mortgage Loani), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xii), both the Certificate Administrator and the Trustee) shall maintain at its offices or the offices of a Custodian and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Depositor, the Rating Agencies, the Underwriters Certificate Administrator, the Custodian, the Controlling Class Representative and, subject to the succeeding paragraph, any Certificateholder, Certificate Owner or Person identified to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and any applicable regulator (viii), the Certificate Administrator, or potential purchaser specified thereby in the case of the items referenced in clause (xi), both the Certificate Administrator and the DepositorTrustee) as a prospective Transferee of a Certificate or an interest therein, originals or and/or copies of the following items: items (ato the extent such items were prepared by or delivered to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xi), both the Certificate Administrator and the Trustee): (i) the Prospectus, the Private Placement Memorandum and any other disclosure document relating to the Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to the Certificate Administrator since the Closing Date, each Mortgage Loan Purchase Agreement, each Non-Trust Servicing Agreement and any amendments and exhibits hereto or thereto, ; (biii) all Distribution Date Statements Certificate Administrator Reports and any files and reports comprising the CMSA Investor Reporting Package actually delivered or otherwise made available to holders of Certificateholders pursuant to Section 4.02(a) since the relevant Class of Certificates Closing Date; (iv) all Annual Performance Certifications delivered by the Master Servicers and/or the Special Servicer to the Certificate Administrator and the Trustee since the Closing Date and all reports, statements and analyses comparable certifications delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (v) all Annual Accountants' Reports caused to be delivered by the Master Servicers and/or the Special Servicer, respectively, to the Certificate Administrator and the Trustee since the Closing Date and all comparable accountant's reports delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (vi) the most recent inspection report prepared by a Master Servicer or the Special Servicer and delivered to the Trustee in respect of each Mortgaged Property pursuant to Section 3.12(a) (or, in the case of the Mortgaged Property securing a Non-Trust-Serviced Pooled Mortgage Loan, prepared by the comparable servicing party under the related Non-Trust Servicing Agreement and delivered to the Trustee since the Closing Date); (vii) any and all notices and reports delivered to the Trustee with respect to any Mortgaged Property as to which the environmental testing contemplated by Section 3.09(c) revealed that neither of the conditions set forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (viii) all files and reports comprising the CMSA Investor Reporting Package delivered to the Certificate Administrator since the Closing Date pursuant to Section 3.12(c4.02(b), ; (cix) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf each of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09Mortgage Files, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) including any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into or consented to by a Master Servicer or the Special Servicer and delivered to the Asset Status Report prepared Trustee or any Custodian pursuant to Section 3.21(d), 3.20; (h) the Servicing File relating to each Mortgage Loan and (ix) any and all Officer’s 's Certificates and other evidence delivered to or by the Trustee to support its, a Master Servicer or Servicer's, the Special Servicer's or the Fiscal Agent's, as the case may be, to support its determination that any Advance waswas (or, or if made, would be, ) a Nonrecoverable Advance pursuant Advance; (xi) to Sections 3.03(ethe extent not otherwise described in any of the foregoing clauses (i) or 4.03(cthrough (x), including appraisals affixed thereto any and all reports, statements and other written or electronic information relating to a Non-Trust-Serviced Pooled Mortgage Loan, the related Mortgaged Property and/or the related Borrower, to the extent such items were received by the applicable Master Servicer under this Agreement or by any Required Appraisal prepared pursuant party to Section 3.09(a)the related Non-Trust Servicing Agreement and (in either case) delivered to the Trustee since the Closing Date; and (xii) any other information that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act. Copies The Certificate Administrator, the Trustee or the Custodian, as applicable, shall provide, or cause to be provided, copies of any and all of the foregoing items will be available from upon request of any of the Master Servicerparties set forth in the previous sentence; however, the Special Servicer or the Trustee, as except in the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant and the Controlling Class Representative, the Certificate Administrator or the Custodian shall be permitted to their require payment of a sum sufficient to cover the reasonable requestscosts and expenses of providing such copies. In connection with providing providing, or causing to be provided, access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement8.12(b), the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall require: (a) in the case of Certificateholders and Certificate Owners and the Controlling Class RepresentativeOwners, a written confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a beneficial holder Holder or Certificate Owner of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, Certificates and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificateholder or Certificate Owner and the Controlling Class Representative may provide such information to its auditors, legal counsel and regulators and to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to need keep confidential any information received from the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and None of the Special Servicer shall not be required to confirmTrustee, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer Custodian or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee Certificate Administrator shall be liable for the dissemination of providing or disseminating information in accordance with the terms of this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr5)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in MinnesotaIllinois), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 five Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C24)
Access to Certain Information. (a) Upon ten days five Business Days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota)offices, during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)an interest, the TrusteeFiscal Agent, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby Agencies and the Depositor, Depositor originals or copies of the following items, to the extent such items are in the Trustee's possession: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and Date, (c) all reports, statements and analyses Officer's Certificates delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13Date, (d) all accountants’ ' reports delivered with respect to the Master Servicer in respect of itself or and the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Special Servicer or the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.093.12(a) hereof, (f) the most recent Mortgaged Property annual operating statements, financial statements and rent roll, if any, collected by or on behalf of the Special Servicer or the Master Servicer pursuant to Section 3.12(b) hereof, together with the accompanying written reports to be prepared by the Master Servicer or the Special Servicer, as the case may be, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and or the Asset Status Report prepared pursuant to Section 3.21(d)Master Servicer, (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Officers' Certificates and other evidence delivered by the Master Servicer or Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as the case may be, to support its determination that any Advance waswas or, or if made, would be, be a Nonrecoverable Advance pursuant to Sections 3.03(eAdvance, (i) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of notices and reports with respect to any Mortgaged Property as to which the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to environmental testing contemplated by Section 3.09(c) revealed that any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies conditions set forth in clauses (A) (i) and (A) (ii) of the items described in first sentence thereof was not satisfied, (j) all Updated Mortgage Loan Schedules and Collection Reports since the preceding paragraph pursuant to this Section 3.15Closing Date, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (bk) in the case of a Holder or prospective purchaser transferee of a Certificate Non-Registered Certificate, any private placement memorandum or an interest thereinother disclosure document relating to the Certificates of such Class, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable most recently provided to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.by
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below below) and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s 's Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s 's Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s 's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s 's Internet Website. In connection with providing access to the Trustee’s 's Internet Website or the Master Servicer’s 's Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C22)
Access to Certain Information. (a) Upon ten days prior written noticeThe Trustee and the Custodian shall each afford to the Depositor, the Master Servicer (with respect to the items in clauses (a)Underwriters, (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the each Master Servicer), the Special Servicer (with respect Servicer, the Controlling Class Representative and each Rating Agency and to the items in clauses (c)OTS, (d)the FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or Certificate Owner, (g), (h) and (i) below) access to any documentation regarding the extent such items Pooled Mortgage Loans or the other assets of the Trust Fund that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to hours at the requesting party, such party having been certified to offices of the Trustee, the Master Servicer Trustee or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special ServicerCustodian, as the case may be, as a prospective transferee designated by it.
(b) The Trustee (or, in the case of any Certificate the items referenced in clause (ix) below, the Custodian, or interest therein or a Companion Loan or any interest therein in the case of the items referenced in clauses (to the extent such information is related to such Companion Loan or the related Mortgage Loani), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xii), both the Certificate Administrator and the Trustee) shall maintain at its offices or the offices of a Custodian and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Depositor, the Rating Agencies, the Underwriters Certificate Administrator, the Custodian, the Controlling Class Representative and, subject to the succeeding paragraph, any Certificateholder, Certificate Owner or Person identified to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and any applicable regulator (viii), the Certificate Administrator, or potential purchaser specified thereby in the case of the items referenced in clause (xi), both the Certificate Administrator and the DepositorTrustee) as a prospective Transferee of a Certificate or an interest therein, originals or and/or copies of the following items: items (ato the extent such items were prepared by or delivered to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xi), both the Certificate Administrator and the Trustee): (i) the Prospectus, the Private Placement Memorandum and any other disclosure document relating to the Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to the Certificate Administrator since the Closing Date, each Mortgage Loan Purchase Agreement, each Non-Trust Servicing Agreement and any amendments and exhibits hereto or thereto, ; (biii) all Distribution Date Statements Certificate Administrator Reports and any files and reports comprising the CMSA Investor Reporting Package actually delivered or otherwise made available to holders of Certificateholders pursuant to Section 4.02(a) since the relevant Class of Certificates Closing Date; (iv) all Annual Performance Certifications delivered by the Master Servicers and/or the Special Servicer to the Certificate Administrator and the Trustee since the Closing Date and all reports, statements and analyses comparable certifications delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (v) all Annual Accountants' Reports caused to be delivered by the Master Servicers and/or the Special Servicer, respectively, to the Certificate Administrator and the Trustee since the Closing Date and all comparable accountant's reports delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (vi) the most recent inspection report prepared by a Master Servicer or the Special Servicer and delivered to the Trustee in respect of each Mortgaged Property pursuant to Section 3.12(a) (or, in the case of the Mortgaged Property securing a Non-Trust-Serviced Pooled Mortgage Loan, prepared by the comparable servicing party under the related Non-Trust Servicing Agreement and delivered to the Trustee since the Closing Date); (vii) any and all notices and reports delivered to the Trustee with respect to any Mortgaged Property as to which the environmental testing contemplated by Section 3.09
(c) revealed that neither of the conditions set forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (viii) all files and reports comprising the CMSA Investor Reporting Package delivered to the Certificate Administrator since the Closing Date pursuant to Section 3.12(c4.02(b), ; (cix) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf each of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09Mortgage Files, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) including any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into or consented to by a Master Servicer or the Special Servicer and delivered to the Asset Status Report prepared Trustee or any Custodian pursuant to Section 3.21(d), 3.20; (h) the Servicing File relating to each Mortgage Loan and (ix) any and all Officer’s 's Certificates and other evidence delivered to or by the Trustee to support its, a Master Servicer or Servicer's, the Special Servicer's or the Fiscal Agent's, as the case may be, to support its determination that any Advance waswas (or, or if made, would be, ) a Nonrecoverable Advance pursuant Advance; (xi) to Sections 3.03(ethe extent not otherwise described in any of the foregoing clauses (i) or 4.03(cthrough (x), including appraisals affixed thereto any and all reports, statements and other written or electronic information relating to a Non-Trust-Serviced Pooled Mortgage Loan, the related Mortgaged Property and/or the related Borrower, to the extent such items were received by the applicable Master Servicer under this Agreement or by any Required Appraisal prepared pursuant party to Section 3.09(a)the related Non-Trust Servicing Agreement and (in either case) delivered to the Trustee since the Closing Date; and (xii) any other information that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act. Copies The Certificate Administrator, the Trustee or the Custodian, as applicable, shall provide, or cause to be provided, copies of any and all of the foregoing items will be available from upon request of any of the Master Servicerparties set forth in the previous sentence; however, the Special Servicer or the Trustee, as except in the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant and the Controlling Class Representative, the Certificate Administrator or the Custodian shall be permitted to their require payment of a sum sufficient to cover the reasonable requestscosts and expenses of providing such copies. In connection with providing providing, or causing to be provided, access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement8.12(b), the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall require: (a) in the case of Certificateholders and Certificate Owners and the Controlling Class RepresentativeOwners, a written confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a beneficial holder Holder or Certificate Owner of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, Certificates and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificateholder or Certificate Owner and the Controlling Class Representative may provide such information to its auditors, legal counsel and regulators and to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to need keep confidential any information received from the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below below) and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser anyone specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s 's Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s 's Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, Representative in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any (y) Restricted Servicer Report or Unrestricted Servicer Report (other than the Interim Delinquent Loan Status Report) that is not available on the Master Servicer’s 's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date Date, and (z) Interim Delinquent Loan Status Report that is not available on the Master Servicer's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the third Business Day of each calendar month shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s 's Internet Website. In connection with providing access to the Trustee’s 's Internet Website or the Master Servicer’s 's Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2004-C15)
Access to Certain Information. (a) Upon ten days reasonable prior written notice, not required to be greater than ten days, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 five Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) Upon the request of the Controlling Class Representative made not more frequently than once a month (which request may be a standing, continuing request), or at such mutually acceptable time each month as the Controlling Class Representative shall reasonably designate, each of the Master Servicer and Special Servicer shall, without charge, make a knowledgeable Servicing Officer available, at the option of the Controlling Class Representative either by telephone or at the office of such Servicing Officer, to answer questions from the Controlling Class Representative regarding the performance and servicing of the Mortgage Loans and/or REO Properties for which such Master Servicer or Special Servicer, as the case may be, is responsible. The Master Servicer and the Special Servicer each shall condition such disclosure upon the Controlling Class Representative entering into a reasonable and customary confidentiality agreement reasonably acceptable to such servicer and the Controlling Class Representative regarding such disclosure to it. Neither the Master Servicer nor the Special Servicer shall be required to provide any information or disclosures in violation of any applicable law, rule or regulation.
(e) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below below) and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s 's Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s 's Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, Representative in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public any interested party (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general publicinterested parties, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public any interested party on its Internet Website (on a password protected basis)Website. The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Trustee shall make available each month, on the fourth Business Day of each calendar month, the Interim Delinquent Loan Status Report to any interested party on its Internet Website. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any (y) Restricted Servicer Report or Unrestricted Servicer Report (other than the Interim Delinquent Loan Status Report) that is not available on the Master Servicer’s 's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date Date, and (z) Interim Delinquent Loan Status Report that is not available on the Master Servicer's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the third Business Day of each calendar month shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s 's Internet Website. In connection with providing access to the Trustee’s 's Internet Website or the Master Servicer’s 's Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C16)
Access to Certain Information. (a) Upon ten days prior written noticeThe Trustee and the Custodian shall each afford to the Depositor, the Underwriters, each Master Servicer (with respect Servicer, each Special Servicer, the Controlling Class Representative and each Rating Agency and to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer)OTS, the Special Servicer (with respect FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or Certificate Owner, access to any documentation regarding the items in clauses (c), (d), (g), (h) and (i) below) to Pooled Mortgage Loans or the extent such items other assets of the Trust Fund that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to hours at the requesting party, such party having been certified to offices of the Trustee, the Master Servicer Trustee or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special ServicerCustodian, as the case may be, as a prospective transferee designated by it.
(b) The Trustee (or, in the case of any Certificate the items referenced in clause (ix) below, the Custodian, or interest therein or a Companion Loan or any interest therein in the case of the items referenced in clauses (to the extent such information is related to such Companion Loan or the related Mortgage Loani), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xii), both the Certificate Administrator and the Trustee) shall maintain at its offices or the offices of a Custodian and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Depositor, the Rating Agencies, the Underwriters Certificate Administrator, the Custodian, the Controlling Class Representative and, subject to the succeeding paragraph, any Certificateholder, Certificate Owner or Person identified to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and any applicable regulator (viii), the Certificate Administrator, or potential purchaser specified thereby in the case of the items referenced in clause (xi), both the Certificate Administrator and the DepositorTrustee) as a prospective Transferee of a Certificate or an interest therein, originals or and/or copies of the following items: items (ato the extent such items were prepared by or delivered to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xi), both the Certificate Administrator and the Trustee): (i) the Prospectus, the Private Placement Memorandum and any other disclosure document relating to the Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to the Certificate Administrator since the Closing Date, each Mortgage Loan Purchase Agreement, each Non-Trust Servicing Agreement and any amendments and exhibits hereto or thereto, ; (biii) all Distribution Date Statements Certificate Administrator Reports and any files and reports comprising the CMSA Investor Reporting Package actually delivered or otherwise made available to holders of Certificateholders pursuant to Section 4.02(a) since the relevant Class of Certificates Closing Date; (iv) all Annual Performance Certifications delivered by the Master Servicers and/or the Special Servicers to the Certificate Administrator and the Trustee since the Closing Date and all reports, statements and analyses comparable certifications delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (v) all Annual Accountants' Reports caused to be delivered by the Master Servicers and/or the Special Servicers, respectively, to the Certificate Administrator and the Trustee since the Closing Date and all comparable accountant's reports delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (vi) the most recent inspection report prepared by a Master Servicer or a Special Servicer and delivered to the Trustee in respect of each Mortgaged Property pursuant to Section 3.12(a) (or, in the case of the Mortgaged Property securing the Non-Trust-Serviced Pooled Mortgage Loan, prepared by the comparable servicing party under the related Non-Trust Servicing Agreement and delivered to the Trustee since the Closing Date); (vii) any and all notices and reports delivered to the Trustee with respect to any Mortgaged Property as to which the environmental testing contemplated by Section 3.09(c) revealed that neither of the conditions set forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (viii) all files and reports comprising the CMSA Investor Reporting Package delivered to the Certificate Administrator since the Closing Date pursuant to Section 3.12(c4.02(b), ; (cix) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf each of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09Mortgage Files, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) including any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into or consented to by the a Master Servicer or Special Servicer and delivered to the Asset Status Report prepared Trustee or any Custodian pursuant to Section 3.21(d), 3.20; (h) the Servicing File relating to each Mortgage Loan and (ix) any and all Officer’s 's Certificates and other evidence delivered to or by the Trustee to support its, a Master Servicer Servicer's, a Special Servicer's or the Special ServicerFiscal Agent's, as the case may be, to support its determination that any Advance waswas (or, or if made, would be, ) a Nonrecoverable Advance pursuant Advance; (xi) to Sections 3.03(ethe extent not otherwise described in any of the foregoing clauses (i) or 4.03(cthrough (x), including appraisals affixed thereto any and all reports, statements and other written or electronic information relating to the Non-Trust-Serviced Pooled Mortgage Loan, the related Mortgaged Property and/or the related Borrower, to the extent such items were received by the applicable Master Servicer under this Agreement or by any Required Appraisal prepared pursuant party to Section 3.09(a)the related Non-Trust Servicing Agreement and (in either case) delivered to the Trustee since the Closing Date; and (xii) any other information that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act. Copies The Certificate Administrator, the Trustee or the Custodian, as applicable, shall provide, or cause to be provided, copies of any and all of the foregoing items will be available from upon request of any of the Master Servicerparties set forth in the previous sentence; however, the Special Servicer or the Trustee, as except in the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant and the Controlling Class Representative, the Certificate Administrator or the Custodian shall be permitted to their require payment of a sum sufficient to cover the reasonable requestscosts and expenses of providing such copies. In connection with providing providing, or causing to be provided, access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement8.12(b), the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall require: (a) in the case of Certificateholders and Certificate Owners and the Controlling Class RepresentativeOwners, a written confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a beneficial holder Holder or Certificate Owner of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, Certificates and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificateholder or Certificate Owner and the Controlling Class Representative may provide such information to its auditors, legal counsel and regulators and to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to need keep confidential any information received from the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and None of the Special Servicer shall not be required to confirmTrustee, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer Custodian or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee Certificate Administrator shall be liable for the dissemination of providing or disseminating information in accordance with the terms of this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr4)
Access to Certain Information. (a) Upon ten days prior written noticeThe Trustee and the Custodian shall each afford to the Depositor, the Master Servicer (with respect to the items in clauses (a)Underwriters, (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the each Master Servicer), the Special Servicer (with respect to the items in clauses (c)each Primary Servicer, (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the each Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the each Rating Agencies and the Depositor, Agency and to the OTS, the FDIC, the Federal Reserve Board FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificate Owner, access to any records documentation regarding the Pooled Mortgage Loans and or the servicing thereof other assets of the Trust Fund that are in its possession or within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer Trustee or the Special ServicerCustodian, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall(or, and in the Master Servicer maycase of the items referenced in clause (ix) below, but is not required tothe Custodian, make available on or prior to in the Distribution Date case of the items referenced in each month to the general public clauses (i) the Distribution Date Statement via their respective Internet Websites), (ii) as a convenience for the general public), the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at and (viii), the request Certificate Administrator, or in the case of the Depositor via their respective Internet Websites. In additionitems referenced in clause (xii), both the Certificate Administrator and the Trustee) shall maintain at its offices or the offices of a Custodian and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Depositor, the Trustee shall make available each month, on each Distribution DateRating Agencies, the Unrestricted Servicer ReportsCertificate Administrator, the CMSA Loan Periodic Update FileCustodian, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative and, subject to the succeeding paragraph, any Certificateholder, Certificate Owner or Person identified to the Trustee (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is or, in the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy case of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear items referenced in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.clause
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr14)
Access to Certain Information. (a) Upon ten days prior written noticeThe Trustee and the Custodian shall each afford to the Depositor, the Underwriters, each Master Servicer (with respect Servicer, each Primary Servicer, each Special Servicer, the Controlling Class Representative and each Rating Agency and to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer)OTS, the Special Servicer (with respect FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or Certificate Owner, access to any documentation regarding the items in clauses (c), (d), (g), (h) and (i) below) to Pooled Mortgage Loans or the extent such items other assets of the Trust Fund that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to hours at the requesting party, such party having been certified to offices of the Trustee, the Master Servicer Trustee or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special ServicerCustodian, as the case may be, as a prospective transferee designated by it.
(b) The Trustee (or, in the case of any Certificate the items referenced in clause (ix) below, the Custodian, or interest therein or a Companion Loan or any interest therein in the case of the items referenced in clauses (to the extent such information is related to such Companion Loan or the related Mortgage Loani), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xii), both the Certificate Administrator and the Trustee) shall maintain at its offices or the offices of a Custodian and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Depositor, the Rating Agencies, the Underwriters Certificate Administrator, the Custodian, the Controlling Class Representative and, subject to the succeeding paragraph, any Certificateholder, Certificate Owner or Person identified to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and any applicable regulator (viii), the Certificate Administrator, or potential purchaser specified thereby in the case of the items referenced in clause (xi), both the Certificate Administrator and the DepositorTrustee) as a prospective Transferee of a Certificate or an interest therein, originals or and/or copies of the following items: items (ato the extent such items were prepared by or delivered to the Trustee (or, in the case of the items referenced in clause (ix) this Agreement below, the Custodian, or in the case
(c) revealed that neither of the conditions set forth in clauses (i) and any amendments thereto, (bii) of the first sentence thereof was satisfied; (viii) all Distribution Date Statements files and reports comprising the CMSA Investor Reporting Package delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer Certificate Administrator since the Closing Date pursuant to Section 3.12(c4.02(b), ; (cix) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf each of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09Mortgage Files, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) including any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into or consented to by the a Master Servicer or Special Servicer and delivered to the Asset Status Report prepared Trustee or any Custodian pursuant to Section 3.21(d), 3.20; (h) the Servicing File relating to each Mortgage Loan and (ix) any and all Officer’s 's Certificates and other evidence delivered to or by the Trustee to support its, a Master Servicer Servicer's, a Special Servicer's or the Special ServicerFiscal Agent's, as the case may be, to support its determination that any Advance waswas (or, or if made, would be, ) a Nonrecoverable Advance pursuant Advance; (xi) to Sections 3.03(ethe extent not otherwise described in any of the foregoing clauses (i) or 4.03(cthrough (x), including appraisals affixed thereto any and all reports, statements and other written or electronic information relating to a Non-Trust-Serviced Pooled Mortgage Loan, the related Mortgaged Property and/or the related Borrower, to the extent such items were received by the applicable Master Servicer under this Agreement or by any Required Appraisal prepared pursuant party to Section 3.09(a)the related Non-Trust Servicing Agreement and (in either case) delivered to the Trustee since the Closing Date; and (xii) any other information that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act. Copies The Certificate Administrator, the Trustee or the Custodian, as applicable, shall provide, or cause to be provided, copies of any and all of the foregoing items will be available from upon request of any of the Master Servicerparties set forth in the previous sentence; however, the Special Servicer or the Trustee, as except in the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant and the Controlling Class Representative, the Certificate Administrator or the Custodian shall be permitted to their require payment of a sum sufficient to cover the reasonable requestscosts and expenses of providing such copies. In connection with providing providing, or causing to be provided, access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement8.12(b), the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall require: (a) in the case of Certificateholders and Certificate Owners and the Controlling Class RepresentativeOwners, a written confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a beneficial holder Holder or Certificate Owner of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, Certificates and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificateholder or Certificate Owner and the Controlling Class Representative may provide such information to its auditors, legal counsel and regulators and to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (b) in the case of a prospective purchaser of a 266 Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to need keep confidential any information received from the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr8)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below below) and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in MinnesotaElk Grove Village, Illinois), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser anyone specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s 's Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s 's Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 L-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 L-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public any interested party (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general publicinterested parties, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File File, and the CMSA Collateral Summary File to the general public any interested party on its Internet Website (on a password protected basis)Website. The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File and (iii) the CMSA Reconciliation of Funds Report to any Privileged Person and to any other Person upon the direction of the Depositor. The Trustee shall make available each month, on the fourth Business Day of each calendar month, the Interim Delinquent Loan Status Report to any interested party on its Internet Website. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any (y) Restricted Servicer Report or Unrestricted Servicer Report (other than the Interim Delinquent Loan Status Report) that is not available on the Master Servicer’s 's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date Date, and (z) Interim Delinquent Loan Status Report that is not available on the Master Servicer's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the third Business Day of each calendar month shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s 's Internet Website. In connection with providing access to the Trustee’s Internet Website 's or the Master Servicer’s 's Internet Website's, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2004-C12)
Access to Certain Information. (a) Upon ten days five Business Days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota)offices, during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as owning or being a prospective transferee of an interest in any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the TrusteeCertificate, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, the Mortgage Loan Sellers or any other party hereto originals or copies of the following items, to the extent such items are in the Trustee's possession: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements and other reports, statements and information delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c)Date, (c) all Officer’s 's Certificates delivered by the Master Servicer or and the Special Servicer since the Closing Date pursuant to Section 3.13Date, (d) all accountants’ ' reports delivered with respect to the Master Servicer in respect of itself or and the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Special Servicer or the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.093.12(a) hereof, (f) the most recent Mortgaged Property annual (and, if available, quarterly and monthly) operating statements, financial statements and rent rollrolls, if any, collected by or on behalf of the Special Servicer or the Master Servicer pursuant to Section 3.12(b) hereof, together with the accompanying written reports to be prepared by the Master Servicer or the Special Servicer, as the case may be, (g) the Mortgage Files, including, without limitation, any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and or the Asset Status Report prepared pursuant to Section 3.21(d)Master Servicer, (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Officers' Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, to support its determination that any Advance was or, if made, would be a Nonrecoverable Advance, (i) any and all notices and reports with respect to any Mortgaged Property as to which the environmental testing contemplated by Section 3.09(c) revealed that any of the conditions set forth in clauses (A) (i) and (A) (ii) of the first sentence thereof was not satisfied, (j) all Updated Mortgage Loan Schedules and Collection Reports since the Closing Date, and (k) in the case of a Holder, beneficial owner, or prospective transferee of a Non-Registered Certificate or an interest therein, any private placement memorandum or other disclosure document relating to the Certificates of such Class, in the form most recently provided to the Trustee by the Depositor or by any Person designated by the Depositor. Copies of any and all of the foregoing items will be available from the Trustee upon request at a reasonable charge therefor and shall be provided to any of the Rating Agencies Agencies, the Depositor and the Mortgage Loan Sellers at no cost pursuant to any of their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificateholder, access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law law, license or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion HoldersMortgagors. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer, the Special Servicer or the Special any Sub-Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and or the Underwriters Trustee, as applicable may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, requesting party (other than the Rating Agencies and the Depositor) of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicabletransferees, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, and reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on . A Certificateholder or prior to the Distribution Date Certificate Owner may obtain certain information contained in each month to the general public (i) the Distribution Date Statement by calling the Trustee's Street Fax System at (000) 000-0000 and requesting an account application through the system. A Certificateholder or Certificate Owner may also receive such information via their respective Internet Websitesthe Trustee's home page on the world wide web. To visit the web page, (ii) as a convenience for Certificateholder or Certificate Owner should access "xxxxxxxxxxxxxx.xxxxxxxxxxx.xxx" using any java-enabled web browser, click on the general public, "Investor Information & Reporting" button and then select the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websitesappropriate transaction. In addition, if the Depositor so directs the Trustee shall make available each month, and on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access terms acceptable to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee will make certain information related to the mortgage loans available through its Corporate Trust web site and through its Trade Winds electronic bulletin board. To register for the Trade Winds bulletin board, a Certificateholder or Certificate Owner should call the Master Servicer, as applicable, may require registration and the acceptance Trustee at (000) 000-0000. Upon written request of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder any Certificateholder of more than one Class record made for purposes of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate communicating with other Holders Certificateholders with respect to their rights under this Agreement or under Agreement, the Certificates and is accompanied by Certificate Registrar will furnish such Certificateholder with a copy list of the communication which such Applicants propose to transmit, other Certificateholders then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Registerrecord.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Access to Certain Information. (a) Upon ten days (10) days' prior written notice, the applicable Master Servicer (with respect to the items in clauses (ai), (bii) (other than Distribution Date Statements, the Prospectus and the Prospectus Supplement), (ciii) (in the case of Annual Statements of Compliance delivered by the subject Master Servicer or any Additional Item 1123 Servicers retained or engaged thereby), (dv), (evi), (fviii), (hix) (in the case of Officer's Certificates delivered by the applicable Master Servicer), (x) and (ixi) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (ciii) (in the case of Annual Statements of Compliance delivered by the Special Servicer or any Additional Item 1123 Servicers retained or engaged thereby), (dvii), (g), viii) (hwith respect to Specially Serviced Trust Mortgage Loans) and (iix) below) to (in the extent such items are in its possession and case of Officer's Certificates delivered by the Special Servicer), the Trustee (with respect to the items in clauses (bi), (ii), (iii), (iv) and (iix) below and any other items, to the extent any other items are in its possession) shall make available at their respective offices primarily responsible for administration of the Serviced Trust Mortgage Loans or the Certificates (or or, in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the subject Master Servicer or the Special Servicer, as applicable, in accordance with clause (ai) and or (bii) in of the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the subject Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein (or a Companion Loan licensed or any interest therein (to the extent registered investment adviser representing such information is related to such Companion Loan or the related Mortgage LoanPerson), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser anyone specified thereby and the Depositor, Depositor originals or copies of the following items: (ai) this Agreement and any amendments thereto, (bii) the Prospectus and Prospectus Supplement, all Distribution Date Statements delivered or otherwise made available to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered or otherwise made available by the subject Master Servicer since the Closing Date pursuant to Section 3.12(c), (ciii) all Officer’s Certificates Annual Statements of Compliance delivered by and/or to the Master Servicer or the Special Servicer Trustee since the Closing Date pursuant to or as contemplated by Section 3.13, (div) all accountants’ reports Annual Assessment Reports and Annual Attestation Reports delivered with respect to and/or to the Master Servicer in respect of itself or the Special Servicer Trustee since the Closing Date pursuant to or as described in contemplated by Section 3.14, (ev) the most recent property inspection report prepared by or on behalf of or received by the subject Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (fvi) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of or received by the subject Master Servicer, (gvii) any and all modifications, waivers and amendments of the terms of a Serviced Trust Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d3.21(c), (hviii) the Servicing File relating to each Serviced Trust Mortgage Loan and Loan, (iix) any and all Officer’s Officers' Certificates and other evidence delivered by the subject Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections Section 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a), (x) all CMSA Operating Statement Analyses and CMSA NOI Adjustment Worksheets maintained by the applicable Master Servicer; and (xi) any and all reports, statements and other written or electronic information relating to an Outside Serviced Trust Mortgage Loan, the related Mortgaged Property and/or the borrower under such Outside Serviced Trust Mortgage Loan, to the extent such items were received by the applicable Master Servicer from an Outside Servicer or the related Outside Trustee. Copies of any and all of the foregoing items will be available from the applicable Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request request, and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the a Master Servicer or the Special Servicer, as applicable, shall require: (ai) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 L-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the subject Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (or a licensed or registered investment adviser representing such other Person), provided that such other Person (or a licensed or registered investment adviser representing such other Person) confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (bii) in the case of a prospective purchaser transferee of a Certificate or an interest thereintherein (or a licensed or registered investment adviser representing such Person), confirmation executed by the requesting Person substantially in the form of Exhibit K-2 L-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the subject Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser transferee of a Certificate or an interest thereintherein (or a licensed or registered investment adviser representing such Person), is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (or a licensed or registered investment adviser representing such other Person), provided that such other Person (or a licensed or registered investment adviser representing such other Person) confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner (or any licensed or registered investment adviser representing such Person) shall be obligated to keep confidential any information received from the Trustee, the a Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the a Master Servicer’s 's or the Special Servicer’s 's Internet Website without restriction as to access as permitted pursuant to the terms of this Agreementaccess, as applicable, or has previously been filed with the Commission, and the Trustee, the such Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the such Master Servicer’s 's or the Special Servicer’s 's Internet Website without restriction as to access in compliance with the terms of this Agreementaccess, as applicable, or has previously been filed with the Commission. Each of the Master Servicer Servicers and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other -171- banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (Certificate Owner or, to the extent such that the subject information is relates to a Serviced Loan Combination, a related to such Companion Serviced Non-Trust Mortgage Loan or the related Mortgage Loan)Noteholder, access to any records regarding the Trust Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion HoldersCertificateholders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the applicable Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master ServicerServicers, the Special Servicer and the Underwriters may require payment from a Certificateholder, Certificate Owner, prospective transferee (or a licensed or registered investment adviser representing such Person) or, in the Certificateholder or Certificate Owner or holder case of a Companion LoanServiced Loan Combination, as applicable, a related Serviced Non-Trust Mortgage Loan Noteholder (to the extent permitted by the related Co-Lender Agreement) of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, such Certificateholder, Certificate Owner, prospective transferee (or a licensed or registered investment adviser representing such Person) or, in the Certificateholders or Certificate Owners or prospective transferees or holder case of a Companion LoanServiced Loan Combination, a related Serviced Non-Trust Mortgage Loan Noteholder, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, any such Person requiring on site review in excess of 3 three (3) Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the A Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to any Privileged Person (or, following receipt of written direction of the general public Depositor, any interested party)
(i) the Distribution Date Statement via their respective its Internet WebsitesWebsite, (ii) as a convenience for Privileged Persons (or, following receipt of written direction of the general publicDepositor, any interested parties) (and not in furtherance of the Prospectus Supplementdistribution thereof under the securities laws), this Agreement, the Prospectus and this Agreement the Prospectus Supplement on their respective its Internet Websites Website and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the DepositorWebsite. The Master Servicers and the Special Servicer maymay each, but neither is not required to, make available each month via its Internet Website in lieu of physical or electronic delivery (i) to any Privileged Person (or, following receipt of written direction of the Depositor, any interested party), the Unrestricted Servicer Reports, the CMSA Appraisal Reduction Template, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the subject Master Servicer or the Special Servicer, as the case may be, the Restricted Servicer Reports, the CMSA Special Servicer Loan File, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the applicable Master Servicer’s 's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the applicable Master Servicer, upon request, to any Person otherwise entitled to access such report on the applicable Master Servicer’s 's Internet Website; provided that, other than with respect to deliveries to the Special Servicer, availability on any such Internet Website shall constitute delivery of the subject Servicer Report pursuant to this Section 3.15(b). In connection with providing access to the Trustee’s Internet Website a Master Servicer's or the Master Special Servicer’s 's Internet Website, the Trustee such Master Servicer or the Master Servicer, as applicable, Special Servicer may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2008-C7)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicerextent in its possession), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below below) and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in MinnesotaElk Grove Village, Illinois), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser anyone specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s 's Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s 's Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class RepresentativeRepresentative (except that the initial Controlling Class Representative may execute a confirmation in the form of Exhibit K-1 hereto that does not include paragraph 5 of such Exhibit), a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public any interested party (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general publicinterested parties, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public any interested party on its Internet Website (on a password protected basis)Website. The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any (y) Restricted Servicer Report or Unrestricted Servicer Report (other than the Interim Delinquent Loan Status Report) that is not available on the Master Servicer’s 's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date Date, and (z) Interim Delinquent Loan Status Report that is not available on the Master Servicer's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the third Business Day of each calendar month shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s 's Internet Website. In connection with providing access to the Trustee’s 's Internet Website or the Master Servicer’s 's Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C18)
Access to Certain Information. (a) Upon ten [___] days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s 's Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s 's Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 [__] Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s 's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s 's Internet Website. In connection with providing access to the Trustee’s 's Internet Website or the Master Servicer’s 's Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Commercial Mortgage Securities Inc)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), ) and (h) below) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (ce), (df), (g), ) and (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota)Loans, during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)an interest, the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby Agencies and the Depositor, Depositor originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and Date, (c) all reports, statements and analyses Officer's Certificates delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13Date, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Special Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant delivered to Section 3.09the Master Servicer, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Special Servicer and delivered to the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d)Servicer, (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Officers' Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance waswas or, or if made, would be, be a Nonrecoverable Advance pursuant to Sections 3.03(eAdvance, and (i) any operating statements, budgets, rent rolls or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to financial statements as described in Section 3.09(a3.12(b). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the TrusteeSpecial Servicer, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to any of their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificateholder, access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion HoldersCertificateholders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, Servicer and the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicabletransferees, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, and reasonable fees for employee time and for space.
. A Certificateholder may obtain the information contained in each Distribution Date Statement by sending a written request, together with any fee that State Street Bank and Trust Company may require, to State Street Bank and Trust Company, Corporate Trust Department, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: MLMI 1996-C2. Factor information may be obtained by potential purchasers of the Offered Certificates, by calling (b000) The 000-0000. In addition, if the Depositor so directs the Trustee shalland on terms agreeable to the Trustee, and the Master Servicer may, but is not required to, Trustee will make available on or prior to the Distribution Date certain Mortgage Loan information contained in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, automated medium to any Person who places a telephone call to (ii000) as a convenience for the general public000-0000 and requests access to Street Fax, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis)Trustee's automated fax back system. The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, therein for which it is not the original source.
(d) With . Upon written request of any Certificateholder of record made for purposes of communicating with other Certificateholders with respect to any Companion Loantheir rights under this Agreement, the Companion Holders shall receive and have access to any information described in this Section 3.15 which Certificate Registrar will furnish such Companion Holder is entitled to pursuant to Certificateholder with a list of the related Intercreditor Agreementother Certificateholders then of record.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below below) and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in MinnesotaIllinois), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s 's Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s 's Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public any interested party (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general publicinterested parties, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public any interested party on its Internet Website (on a password protected basis)Website. The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s 's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s 's Internet Website. In connection with providing access to the Trustee’s 's Internet Website or the Master Servicer’s 's Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C20)
Access to Certain Information. (a) Upon ten days days' prior written notice, the Master Servicer (with respect to the items in clauses (ai), (bii) (other than Distribution Date Statements, the Prospectus and the Prospectus Supplement), (ciii) (in the case of Annual Statements of Compliance delivered by the Master Servicer or any Additional Item 1123 Servicers retained or engaged thereby), (dv), (evi), (fviii), (hix) (in the case of Officer's Certificates delivered by the Master Servicer), (x) and (ixi) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (ciii) (in the case of Annual Statements of Compliance delivered by the Special Servicer or any Additional Item 1123 Servicers retained or engaged thereby), (dvii), (gviii) (with respect to Specially Serviced Mortgage Loans), (hix) (in the case of Officer's Certificates delivered by the Special Servicer) and (ix) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (bi), (ii), (iii), (iv) and (iix) below and any other items, to the extent any other items are in its possession) shall make available at their respective offices primarily responsible for administration of the Serviced Mortgage Loans (or or, in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with clause (ai) and or (bii) in of the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein (or a Companion Loan licensed or any interest therein (to the extent registered investment adviser representing such information is related to such Companion Loan or the related Mortgage LoanPerson), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser anyone specified thereby and the Depositor, Depositor originals or copies of the following items: (ai) this Agreement and any amendments thereto, (bii) the Prospectus and Prospectus Supplement, all Distribution Date Statements delivered or otherwise made available to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered or otherwise made available by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (ciii) all Officer’s Certificates Annual Statements of Compliance delivered by and/or to the Master Servicer or the Special Servicer Trustee since the Closing Date pursuant to or as contemplated by Section 3.13, (div) all accountants’ reports Annual Assessment Reports and Annual Attestation Reports delivered with respect to and/or to the Master Servicer in respect of itself or the Special Servicer Trustee since the Closing Date pursuant to or as described in contemplated by Section 3.14, (ev) the most recent property inspection report prepared by or on behalf of or received by the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (fvi) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of or received by the Master Servicer, (gvii) any and all modifications, waivers and amendments of the terms of a Serviced Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (hviii) the Servicing File relating to each Serviced Mortgage Loan and Loan, (iix) any and all Officer’s Officers' Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections Section 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a), (x) all CMSA Operating Statement Analyses and CMSA NOI Adjustment Worksheets maintained by the Master Servicer or Special Servicer; and (xi) any and all reports, statements and other written or electronic information relating to the Outside Serviced Mortgage Loan, the related Mortgaged Property and/or the borrower under the Outside Serviced Mortgage Loan, to the extent such items were received by the Master Servicer from an Outside Servicer or the related Outside Trustee. Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request request, and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative (and, with respect to the [ABC] Mortgage Loan, the Class [XXX] Representative), in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (ai) in the case of Certificate Owners and the Controlling Class Representative (and, with respect to the [ABC] Mortgage Loan, the Class [XXX] Representative), a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 L-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative (and, with respect to the [ABC] Mortgage Loan, the Class [XXX] Representative) may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (or a licensed or registered investment adviser representing such other Person), provided that such other Person (or a licensed or registered investment adviser representing such other Person) confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (bii) in the case of a prospective purchaser transferee of a Certificate or an interest thereintherein (or a licensed or registered investment adviser representing such Person), confirmation executed by the requesting Person substantially in the form of Exhibit K-2 L-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser transferee of a Certificate or an interest thereintherein (or a licensed or registered investment adviser representing such Person), is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative (and, with respect to the [ABC] Mortgage Loan, the Class [XXX] Representative), by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (or a licensed or registered investment adviser representing such other Person), provided that such other Person (or a licensed or registered investment adviser representing such other Person) confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner (or any licensed or registered investment adviser representing such Person) shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or the Special Servicer’s 's Internet Website without restriction as to access as permitted pursuant to the terms of this Agreementaccess, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or the Special Servicer’s 's Internet Website without restriction as to access in compliance with the terms of this Agreementaccess, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (Certificate Owner or, to the extent such that the subject information is relates to an A/B Loan Combination, a related to such Companion Loan or the related Mortgage Loan)B-Noteholder, access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion HoldersCertificateholders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from a Certificateholder, Certificate Owner, prospective transferee (or a licensed or registered investment adviser representing such Person) or, in the Certificateholder or Certificate Owner or holder case of an A/B Loan Combination, a Companion Loan, as applicablerelated B-Noteholder, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, such Certificateholder, Certificate Owner, prospective transferee (or a licensed or registered investment adviser representing such Person) or, in the Certificateholders or Certificate Owners or prospective transferees or holder case of an A/B Loan Combination, a Companion Loanrelated B-Noteholder, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, any such Person requiring on site review in excess of 3 three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to any Privileged Person (or, following receipt of written direction of the general public Depositor, any interested party)
(i) the Distribution Date Statement via their respective its Internet WebsitesWebsite, (ii) as a convenience for Privileged Persons (or, following receipt of written direction of the general publicDepositor, any interested parties) (and not in furtherance of the Prospectus Supplementdistribution thereof under the securities laws), this Agreement, the Prospectus and this Agreement the Prospectus Supplement on their respective its Internet Websites Website and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the DepositorWebsite. The Master Servicer mayand the Special Servicer may each, but neither is not required to, make available each month via its Internet Website (i) to any Privileged Person (or, following receipt of written direction of the Depositor, any interested party), the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer or the Special Servicer, as the case may be, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s 's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s 's Internet Website. In connection with providing access to the Trustee’s Internet Website Master Servicer's or the Master Special Servicer’s 's Internet Website, the Trustee or the Master Servicer, as applicable, Servicer may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Securities Inc)
Access to Certain Information. (a) Upon ten days prior written noticeThe Trustee and the Custodian shall each afford to the Depositor, the Underwriters, each Master Servicer (with respect Servicer, each Special Servicer, the Controlling Class Representative and each Rating Agency and to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer)OTS, the Special Servicer (with respect FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or Certificate Owner, access to any documentation regarding the items in clauses (c), (d), (g), (h) and (i) below) to Mortgage Loans or the extent such items other assets of the Trust Fund that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to hours at the requesting party, such party having been certified to offices of the Trustee, the Master Servicer Trustee or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special ServicerCustodian, as the case may be, as a prospective transferee designated by it.
(b) The Trustee (or, in the case of any Certificate the items referenced in clause (ix) below, the Custodian, or interest therein or a Companion Loan or any interest therein in the case of the items referenced in clauses (to the extent such information is related to such Companion Loan or the related Mortgage Loani), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xi), both the Certificate Administrator and the Trustee) shall maintain at its offices or the offices of a Custodian and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Depositor, the Rating Agencies, the Underwriters Certificate Administrator, the Custodian, the Controlling Class Representative and, subject to the succeeding paragraph, any Certificateholder, Certificate Owner or Person identified to the Certificate Administrator (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and any applicable regulator (viii), the Certificate Administrator, or potential purchaser specified thereby in the case of the items referenced in clause (xi), both the Certificate Administrator and the DepositorTrustee) as a prospective Transferee of a Certificate or an interest therein, originals or and/or copies of the following items: items (ato the extent such items were prepared by or delivered to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xi), both the Certificate Administrator and the Trustee): (i) the Prospectus, the Private Placement Memorandum and any other disclosure document relating to the Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates Certificate Administrator since the Closing Date and any amendments and exhibits hereto or thereto; (iii) all reports, statements Certificate Administrator Reports and analyses any files and reports comprising the CMSA Investor Reporting Package actually delivered or otherwise made available to Certificateholders pursuant to Section 4.02(a) since the Closing Date; (iv) all Annual Performance Certifications delivered by the Master Servicers and the Special Servicers to the Certificate Administrator and the Trustee since the Closing Date; (v) all Annual Accountants' Reports caused to be delivered by the Master Servicers and the Special Servicers, respectively, to the Certificate Administrator and the Trustee since the Closing Date; (vi) the most recent inspection report prepared by a Master Servicer or a Special Servicer and delivered to the Trustee in respect of each Mortgaged Property pursuant to Section 3.12(a); (vii) any and all notices and reports delivered to the Trustee with respect to any Mortgaged Property as to which the environmental testing contemplated by Section 3.09(c) revealed that neither of the conditions set forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (viii) all files and reports comprising the CMSA Investor Reporting Package delivered to the Certificate Administrator since the Closing Date pursuant to Section 3.12(c4.02(b), ; (cix) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf each of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09Mortgage Files, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) including any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into or consented to by the applicable Special Servicer and delivered to the Asset Status Report prepared Trustee or any Custodian pursuant to Section 3.21(d), 3.20; (h) the Servicing File relating to each Mortgage Loan and (ix) any and all Officer’s 's Certificates and other evidence delivered to or by the Trustee to support its, a Master Servicer Servicer's or the Special ServicerFiscal Agent's, as the case may be, to support its determination that any Advance waswas (or, or if made, would be, ) a Nonrecoverable Advance pursuant Advance; and (xi) any other information that may be necessary to Sections 3.03(esatisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act. The Certificate Administrator, the Trustee or 4.03(c)the Custodian, including appraisals affixed thereto and any Required Appraisal prepared pursuant as applicable, shall provide, or cause to Section 3.09(a). Copies be provided, copies of any and all of the foregoing items will be available from upon request of any of the Master Servicerparties set forth in the previous sentence; however, the Special Servicer or the Trustee, as except in the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant and the Controlling Class Representative, the Certificate Administrator or the Custodian shall be permitted to their require payment of a sum sufficient to cover the reasonable requestscosts and expenses of providing such copies. In connection with providing providing, or causing to be provided, access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement8.12(b), the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall require: (a) in the case of Certificateholders and Certificate Owners and the Controlling Class RepresentativeOwners, a written confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 J-1 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a beneficial holder Holder or Certificate Owner of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, Certificates and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificateholder or Certificate Owner and the Controlling Class Representative may provide such information to its auditors, legal counsel and regulators and to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 J-2 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to need keep confidential any information received from the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and None of the Special Servicer shall not be required to confirmTrustee, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer Custodian or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee Certificate Administrator shall be liable for the dissemination of providing or disseminating information in accordance with the terms of this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Sec Tr 2002-Pbw1)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) below (unless any such item was not delivered to the extent such items are in its possession Special Servicer) and the Trustee (with respect to the items in clauses (b) and (i) below below) and any other items, items (unless any such item was not delivered to the extent in its possessionTrustee) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices office in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser anyone specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, Representative in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided , provided, that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided , provided, that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public any interested party (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general publicinterested parties, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File File, and the CMSA Collateral Summary File to the general public any interested party on its Internet Website (on a password protected basis)Website. The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File File, and (iii) the CMSA Reconciliation of Funds Report to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 five Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) Upon the request of the Controlling Class Representative made not more frequently than once a month (which request may be a standing, continuing request), or at such mutually acceptable time each month as the Controlling Class Representative shall reasonably designate, each of the Master Servicer and Special Servicer shall, without charge, make a knowledgeable Servicing Officer available, at the option of the Controlling Class Representative either by telephone or at the office of such Servicing Officer, to answer questions from the Controlling Class Representative regarding the performance and servicing of the Mortgage Loans and/or REO Properties for which such Master Servicer or Special Servicer, as the case may be, is responsible. The Master Servicer and each of the Special Servicers each shall condition such disclosure upon the Controlling Class Representative entering into a reasonable and customary confidentiality agreement reasonably acceptable to such servicer and the Controlling Class Representative regarding such disclosure to it. Neither the Master Servicer nor the Special Servicer shall be required to provide any information or disclosures in violation of any applicable law, rule or regulation.
(e) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C17)
Access to Certain Information. (a) Upon ten days prior written noticeThe Trustee and the Custodian shall each afford to the Depositor, the Master Servicer (with respect to the items in clauses (a)Underwriters, (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the each Master Servicer), the Special Servicer (with respect Servicer, the Controlling Class Representative and each Rating Agency and to the items in clauses (c)OTS, (d)the FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or Certificate Owner, (g), (h) and (i) below) access to any documentation regarding the extent such items Pooled Mortgage Loans or the other assets of the Trust Fund that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to hours at the requesting party, such party having been certified to offices of the Trustee, the Master Servicer Trustee or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special ServicerCustodian, as the case may be, as a prospective transferee designated by it.
(b) The Trustee (or, in the case of any Certificate the items referenced in clause (ix) below, the Custodian, or interest therein or a Companion Loan or any interest therein in the case of the items referenced in clauses (to the extent such information is related to such Companion Loan or the related Mortgage Loani), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xi), both the Certificate Administrator and the Trustee) shall maintain at its offices or the offices of a Custodian and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Depositor, the Rating Agencies, the Underwriters Certificate Administrator, the Custodian, the Controlling Class Representative and, subject to the succeeding paragraph, any Certificateholder, Certificate Owner or Person identified to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and any applicable regulator (viii), the Certificate Administrator, or potential purchaser specified thereby in the case of the items referenced in clause (xi), both the Certificate Administrator and the DepositorTrustee) as a prospective Transferee of a Certificate or an interest therein, originals or and/or copies of the following items: items (ato the extent such items were prepared by or delivered to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xi), both the Certificate Administrator and the Trustee): (i) the Prospectus, the Private Placement Memorandum and any other disclosure document relating to the Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to the Certificate Administrator since the Closing Date, each Mortgage Loan Purchase Agreement and any amendments and exhibits hereto or thereto, ; (biii) all Distribution Date Statements Certificate Administrator Reports and any files and reports comprising the CMSA Investor Reporting Package actually delivered or otherwise made available to holders of the relevant Class of Certificates Certificateholders pursuant to Section 4.02(a) since the Closing Date and Date; (iv) all reports, statements and analyses Annual Performance Certifications delivered by the Master Servicers and/or the Special Servicer to the Certificate Administrator and the Trustee since the Closing Date; (v) all Annual Accountants' Reports caused to be delivered by the Master Servicers and/or the Special Servicer, respectively, to the Certificate Administrator and the Trustee since the Closing Date; (vi) the most recent inspection report prepared by a Master Servicer or the Special Servicer and delivered to the Trustee in respect of each Mortgaged Property pursuant to Section 3.12(a); (vii) any and all notices and reports delivered to the Trustee with respect to any Mortgaged Property as to which the environmental testing contemplated by Section 3.09(c) revealed that neither of the conditions set forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (viii) all files and reports comprising the CMSA Investor Reporting Package delivered to the Certificate Administrator since the Closing Date pursuant to Section 3.12(c4.02(b), ; (cix) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf each of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09Mortgage Files, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) including any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into or consented to by a Master Servicer or the Special Servicer and delivered to the Asset Status Report prepared Trustee or any Custodian pursuant to Section 3.21(d), 3.20; (h) the Servicing File relating to each Mortgage Loan and (ix) any and all Officer’s 's Certificates and other evidence delivered to or by the Trustee to support its, a Master Servicer or Servicer's, the Special Servicer's or the Fiscal Agent's, as the case may be, to support its determination that any Advance waswas (or, or if made, would be, ) a Nonrecoverable Advance pursuant Advance; and (xi) any other information that may be necessary to Sections 3.03(esatisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act. The Certificate Administrator, the Trustee or 4.03(c)the Custodian, including appraisals affixed thereto and any Required Appraisal prepared pursuant as applicable, shall provide, or cause to Section 3.09(a). Copies be provided, copies of any and all of the foregoing items will be available from upon request of any of the Master Servicerparties set forth in the previous sentence; however, the Special Servicer or the Trustee, as except in the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant and the Controlling Class Representative, the Certificate Administrator or the Custodian shall be permitted to their require payment of a sum sufficient to cover the reasonable requestscosts and expenses of providing such copies. In connection with providing providing, or causing to be provided, access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement8.12(b), the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall require: (a) in the case of Certificateholders and Certificate Owners and the Controlling Class RepresentativeOwners, a written confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a beneficial holder Holder or Certificate Owner of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, Certificates and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificateholder or Certificate Owner and the Controlling Class Representative may provide such information to its auditors, legal counsel and regulators and to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to need keep confidential any information received from the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and None of the Special Servicer shall not be required to confirmTrustee, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer Custodian or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee Certificate Administrator shall be liable for the dissemination of providing or disseminating information in accordance with the terms of this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Sec Fin Corp Com Mort Tr 2003 Pwr1)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (cd), (de), (f), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee Paying Agent (with respect to the items in clauses clause (b) and (i) below and any other items, to the extent any other items are in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota)Loans, during normal business hours, or send to the requesting party, such party having been certified to the Trustee, Paying Agent or the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person person identified by a Certificate Owner or Certificateholder or its designated agent to the TrusteePaying Agent, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)therein, the Trustee, the Paying Agent, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser anyone specified thereby and the Depositor, Depositor originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Officers' Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Officers' Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(eSection 3.20(d) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, Paying Agent or the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 V-1 hereto (or such other form as may be reasonably acceptable to the Trustee, Paying Agent or the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 V-2 hereto (or such other form as may be reasonably acceptable to the Trustee, Paying Agent or the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; , provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, Paying Agent or the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available without a password via the Trustee’s, Paying Agent's or the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement's, as applicable, Internet Website or has previously been filed with the Commission, and the Trustee, Paying Agent or the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available without a password via the Trustee’s, Paying Agent's or the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement's, as applicable, Internet Website or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Paying Agent, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificateholder, access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion HoldersCertificateholders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The TrusteePaying Agent, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicabletransferees, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 three Business Days, reasonable fees for employee time and for space.
(b) The Trustee Paying Agent shall, and the Master Servicer may, may but is not required to, make available on or prior to the Distribution Date in each month to the general public any interested party (i) the Distribution Date Statement via their respective Internet Websites, and (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and interested parties this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee Paying Agent shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File File, and the CMSA Collateral Summary File to the general public any interested party on its Internet Website (on a password protected basis)Website. The Trustee Paying Agent shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and Person. The Paying Agent shall make available each month, on the fourth Business Day of each calendar month, the Interim Delinquent Loan Status Report to any other Person upon the direction of the Depositorinterested party on its Internet Website. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File File, and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any (y) Restricted Servicer Report or Unrestricted Servicer Report (other than the Interim Delinquent Loan Status Report) that is not available on the Master Servicer’s 's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date Date, and (z) Interim Delinquent Loan Status Report that is not available on the Master Servicer's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the third Business Day of each calendar month shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s 's Internet Website. In connection with providing access to the Trustee’s Paying Agent's Internet Website or the Master Servicer’s 's Internet Website, the Trustee Paying Agent or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Pass THR Cer Ser 2001-C3)
Access to Certain Information. (a) Upon ten days prior written noticeThe Trustee and the Custodian shall each afford to the Depositor, the Master Servicer (with respect to the items in clauses (a)Underwriters, (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the each Master Servicer), the Special Servicer (with respect Servicer, the Controlling Class Representative and each Rating Agency and to the items in clauses (c)OTS, (d)the FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or Certificate Owner, (g), (h) and (i) below) access to any documentation regarding the extent such items Pooled Mortgage Loans or the other assets of the Trust Fund that are in its possession or within its control. Such access shall be afforded without charge but only upon reasonable prior written request and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to hours at the requesting party, such party having been certified to offices of the Trustee, the Master Servicer Trustee or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special ServicerCustodian, as the case may be, as a prospective transferee designated by it.
(b) The Trustee (or, in the case of any Certificate the items referenced in clause (ix) below, the Custodian, or interest therein or a Companion Loan or any interest therein in the case of the items referenced in clauses (to the extent such information is related to such Companion Loan or the related Mortgage Loani), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xii), both the Certificate Administrator and the Trustee) shall maintain at its offices or the offices of a Custodian and, upon reasonable prior written request and during normal business hours, shall make available, or cause to be made available, for review by the Depositor, the Rating Agencies, the Underwriters Certificate Administrator, the Custodian, the Controlling Class Representative and, subject to the succeeding paragraph, any Certificateholder, Certificate Owner or Person identified to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and any applicable regulator (viii), the Certificate Administrator, or potential purchaser specified thereby in the case of the items referenced in clause (xi), both the Certificate Administrator and the DepositorTrustee) as a prospective Transferee of a Certificate or an interest therein, originals or and/or copies of the following items: items (ato the extent such items were prepared by or delivered to the Trustee (or, in the case of the items referenced in clause (ix) below, the Custodian, or in the case of the items referenced in clauses (i), (ii), (iii) and (viii), the Certificate Administrator, or in the case of the items referenced in clause (xi), both the Certificate Administrator and the Trustee): (i) the Prospectus, the Private Placement Memorandum and any other disclosure document relating to the Certificates, in the form most recently provided to the Certificate Administrator by the Depositor or by any Person designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to the Certificate Administrator since the Closing Date, each Mortgage Loan Purchase Agreement, each Non-Trust Servicing Agreement and any amendments and exhibits hereto or thereto, ; (biii) all Distribution Date Statements Certificate Administrator Reports and any files and reports comprising the CMSA Investor Reporting Package actually delivered or otherwise made available to holders of Certificateholders pursuant to Section 4.02(a) since the relevant Class of Certificates Closing Date; (iv) all Annual Performance Certifications delivered by the Master Servicers and/or the Special Servicer to the Certificate Administrator and the Trustee since the Closing Date and all reports, statements and analyses comparable certifications delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (v) all Annual Accountants' Reports caused to be delivered by the Master Servicers and/or the Special Servicer, respectively, to the Certificate Administrator and the Trustee since the Closing Date and all comparable accountant's reports delivered to the Trustee with respect to comparable servicing parties under the Non-Trust Servicing Agreements since the Closing Date; (vi) the most recent inspection report prepared by a Master Servicer or the Special Servicer and delivered to the Trustee in respect of each Mortgaged Property pursuant to Section 3.12(a) (or, in the case of the Mortgaged Property securing the Non-Trust-Serviced Pooled Mortgage Loan, prepared by the comparable servicing party under the Non-Trust Servicing Agreement and delivered to the Trustee since the Closing Date); (vii) any and all notices and reports delivered to the Trustee with respect to any Mortgaged Property as to which the environmental testing contemplated by Section 3.09(c) revealed that neither of the conditions set forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (viii) all files and reports comprising the CMSA Investor Reporting Package delivered to the Certificate Administrator since the Closing Date pursuant to Section 3.12(c4.02(b), ; (cix) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf each of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09Mortgage Files, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) including any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into or consented to by a Master Servicer or the Special Servicer and delivered to the Asset Status Report prepared Trustee or any Custodian pursuant to Section 3.21(d), 3.20; (h) the Servicing File relating to each Mortgage Loan and (ix) any and all Officer’s 's Certificates and other evidence delivered to or by the Trustee to support its, a Master Servicer or Servicer's, the Special Servicer's or the Fiscal Agent's, as the case may be, to support its determination that any Advance waswas (or, or if made, would be, ) a Nonrecoverable Advance pursuant Advance; (xi) to Sections 3.03(ethe extent not otherwise described in any of the foregoing clauses (i) or 4.03(cthrough (x), including appraisals affixed thereto any and all reports, statements and other written or electronic information relating to the Non-Trust-Serviced Pooled Mortgage Loan, the related Mortgaged Property and/or the related Borrower, to the extent such items were received by the applicable Master Servicer under this Agreement or by any Required Appraisal prepared pursuant party to Section 3.09(a)the Non-Trust Servicing Agreement and (in either case) delivered to the Trustee since the Closing Date; and (xii) any other information that may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act. Copies The Certificate Administrator, the Trustee or the Custodian, as applicable, shall provide, or cause to be provided, copies of any and all of the foregoing items will be available from upon request of any of the Master Servicerparties set forth in the previous sentence; however, the Special Servicer or the Trustee, as except in the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant and the Controlling Class Representative, the Certificate Administrator or the Custodian shall be permitted to their require payment of a sum sufficient to cover the reasonable requestscosts and expenses of providing such copies. In connection with providing providing, or causing to be provided, access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement8.12(b), the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall require: (a) in the case of Certificateholders and Certificate Owners and the Controlling Class RepresentativeOwners, a written confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a beneficial holder Holder or Certificate Owner of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, Certificates and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificateholder or Certificate Owner and the Controlling Class Representative may provide such information to its auditors, legal counsel and regulators and to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential)); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to need keep confidential any information received from the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the TrusteeCertificate Administrator, the Master Servicer Trustee or the Special ServicerCustodian, as applicablethe case may be, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 8.12(b) that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and None of the Special Servicer shall not be required to confirmTrustee, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer Custodian or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee Certificate Administrator shall be liable for the dissemination of providing or disseminating information in accordance with the terms of this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr6)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), ) and (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (ce), (df), (g), (h) and (i) below) and the Trustee to the extent any such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other itemspossession, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota)Loans, during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person person identified by a Certificate Owner or Certificateholder Holder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)an interest, the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser anyone specified thereby and the Depositor, Depositor originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s 's Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Special Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant delivered to Section 3.09the Master Servicer, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Special Servicer and delivered to the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d)Servicer, (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Officers' Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance waswas or, or if made, would be, be a Nonrecoverable Advance pursuant to Sections 3.03(eAdvance, and (i) any operating statements, budgets, rent rolls or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a)financial statements. Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the TrusteeSpecial Servicer, as the case may be, upon request and shall be provided to any of the Rating Agencies and Xxxxxx Brothers Inc. at no cost pursuant to any of their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, Xxxxxx Brothers Inc., the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificateholder, access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion HoldersCertificateholders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicabletransferees, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, and reasonable fees for employee time and for space.
. A Certificateholder or Certificate Owner may obtain certain information contained in each Distribution Date Statement by calling the Trustee's ASAP System at (b000) The 000-0000 and requesting statement number 295, or such other mechanism as the Trustee shallmay have in place from time to time. Account numbers on the Trustee's ASAP System may be obtained by calling (000) 000-0000 and following the voice prompts for obtaining account numbers. Certificate Factor information may be obtained by potential purchasers of the Certificates or interests therein, and by calling (000) 000-0000. In addition, if the Master Servicer mayDepositor or either of the Underwriters so directs the Trustee, but is not required to, the Trustee will make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, automated medium to any Person who places a telephone call to (ii000) as a convenience for the general public000-0000 and requests access to ASAP, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet WebsitesTrustee's automated fax back system. In additionAdditionally, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer ReportsSpecial Servicer, the CMSA Financial File Certificateholders, Certificate Owners identified to the Trustee in writing, the Depositor, the Underwriters, each Rating Agency, and Bloomberg, L.P. (and may in its discretion and upon receipt of written consent of the Underwriters publish on the internet) by means of electronic access to a datafile in the "CSSA Loan periodic update file" and the CMSA "CSSA Property File. Any Restricted Servicer " with the Delinquent Loss Status Report, Historical Loan Modification Report, Historical Loss Estimate Report, REO Status Report, Loan Payoff Notification Report or Unrestricted Servicer and the Watch List Report that is not available on attached (provided such reports have been delivered to the Master Servicer’s Internet Website as described Trustee pursuant to Section 3.12(c) in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in an electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access format acceptable to the Trustee’s Internet Website or ) via the Master Servicer’s Internet WebsiteTrustee's bulletin board, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which accessible by dialing (together with its Affiliates000) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c000-0000). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, therein for which it is not the original source.
(d) With respect to any Companion Loan. The Master Servicer, upon receipt of written consent of the Companion Holders shall receive and have access to Underwriters, may publish on the internet any information described in this Section 3.15 which such Companion Holder that Trustee is entitled obligated to pursuant provide to Bloomberg, L.P. provided that any expenses or liability arising therefrom shall not be an Additional Trust Fund Expense and shall be the related Intercreditor Agreementsole responsibility of the Master Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
Access to Certain Information. (a) Upon ten days reasonable prior written notice, not required to be greater than ten days, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Co-Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Co-Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer Servicer, the Co-Trustee or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Co-Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 three (3) Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 five (5) Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) Upon the request of the Controlling Class Representative made not more frequently than once a month (which request may be a standing, continuing request), or at such mutually acceptable time each month as the Controlling Class Representative shall reasonably designate, each of the Master Servicer and Special Servicer shall, without charge, make a knowledgeable Servicing Officer available, at the option of the Controlling Class Representative either by telephone or at the office of such Servicing Officer, to answer questions from the Controlling Class Representative regarding the performance and servicing of the Mortgage Loans and/or REO Properties for which such Master Servicer or Special Servicer, as the case may be, is responsible. The Master Servicer and the Special Servicer each shall condition such disclosure upon the Controlling Class Representative entering into a reasonable and customary confidentiality agreement reasonably acceptable to such servicer and the Controlling Class Representative regarding such disclosure to it. Neither the Master Servicer nor the Special Servicer shall be required to provide any information or disclosures in violation of any applicable law, rule or regulation.
(e) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C28)
Access to Certain Information. (a) Upon ten days reasonable prior written notice, not required to be greater than ten days, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a); provided, however, that none of the Master Servicer, Special Servicer or Trustee shall be obligated to release any information that is subject to attorney client, work product or other confidentiality agreement or protections, unless otherwise required to be delivered in accordance with any applicable Intercreditor Agreement. Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) Upon the request of the Controlling Class Representative made not more frequently than once a month (which request may be a standing, continuing request), or at such mutually acceptable time each month as the Controlling Class Representative shall reasonably designate, each of the Master Servicer and Special Servicer shall, without charge, make a knowledgeable Servicing Officer available, at the option of the Controlling Class Representative either by telephone or at the office of such Servicing Officer, to answer questions from the Controlling Class Representative regarding the performance and servicing of the Mortgage Loans and/or REO Properties for which such Master Servicer or Special Servicer, as the case may be, is responsible. The Master Servicer and the Special Servicer each shall condition such disclosure upon the Controlling Class Representative entering into a reasonable and customary confidentiality agreement reasonably acceptable to such servicer and the Controlling Class Representative regarding such disclosure to it. Neither the Master Servicer nor the Special Servicer shall be required to provide any information or disclosures in violation of any applicable law, rule or regulation.
(e) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C34)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTSeach Rating Agency, the FDICDirecting Certificateholder, the Federal Reserve Board CC Controlling Holder (if the CC Component Mortgage Loan is involved), the SS Controlling Holder (if the SS Component Mortgage Loan is involved), the UH Controlling Holder (if the UH Component Mortgage Loan is involved), the CBA B Noteholder (if the CBA A/B Loan is involved), the 17 State Street B Noteholder (if the 17 State Street A/B Loan is involvxx), xxx xx xxx XTS, the FDIC and any other banking xxxxx xxxxxxx or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificate Owner, access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law law, the terms of the Mortgage Loan documents or contract entered into prior to the Closing Date or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion HoldersCertificateholders. Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee; provided, the Master Servicerhowever, the Special Servicer that Certificateholders and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, required to any Person otherwise entitled to access such report on the Master Servicer’s Internet Websitepay their own photocopying costs. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall each be entitled to affix a reasonable disclaimer to any information provided by it for which it is not be required to confirm, represent or warrant the accuracy or completeness original source (without suggesting liability on the part of any other Person’s information or report included in any communication from party hereto). In connection with providing access to such records to the Directing Certificateholder, the CC Controlling Holder (if the CC Component Mortgage Loan is involved), the SS Controlling Holder (if the SS Component Mortgage Loan is involved), the UH Controlling Holder (if the UH Component Mortgage Loan is involved), the CBA B Noteholder (if the CBA A/B Loan is involved), and the 17 State Street B Noteholder (if the 17 State Street A/B Loan is involvxx), xxx Xxxxxx Xervicer and the Specxxx Xxxxxxxx xxy each require registration (to the extent access is provided via the Master Servicer or Servicer's internet website) and the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination acceptance of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as a reasonable disclaimer and otherwise adopt reasonable rules and procedures, which may include, to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, extent the Master Servicer or the Special Servicer, respectivelyas applicable, for which it is not deems necessary or reasonably appropriate, conditioning access on the original source.
(d) With respect execution and delivery of an agreement reasonably governing the availability, use and disclosure of such information. The failure of the Master Servicer or the Special Servicer to any Companion Loan, the Companion Holders shall receive and have provide access to any information described as provided in this Section 3.15 which such Companion Holder as a result of a confidentiality obligation shall not constitute a breach of this Section 3.15. The Master Servicer and the Special Servicer may each deny any of the foregoing persons access to confidential information or any intellectual property that the Master Servicer or the Special Servicer is entitled to pursuant to restricted by license or contract from disclosing. Neither the related Intercreditor Master Servicer nor the Special Servicer shall be liable for providing or disseminating information in accordance with the terms of this Agreement.
(b) Once a month, each of the Master Servicer and the Special Servicer shall, without charge, make a knowledgeable Servicing Officer available to answer questions from the Directing Certificateholder during regular business hours at such time and for such duration as the Master Servicer or the Special Servicer, as applicable, and the Directing Certificateholder shall reasonably agree, regarding the performance and servicing of the Mortgage Loans and/of REO Properties for which the Servicer or the Special Servicer, as the case may be, is responsible. As a condition to such disclosure, the Directing Certificateholder shall execute a confidentiality agreement substantially in the form attached hereto as Exhibit M.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mort. Pass Thr. Certs SER 2004-3)
Access to Certain Information. (a) Upon at least ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other items, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser specified thereby and the Depositor, originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s 's Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s 's Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a); provided, however, that none of the Master Servicer, Special Servicer or Trustee shall be obligated to release any information that is subject to attorney client, work product or other confidentiality agreement or protections, unless otherwise required to be delivered in accordance with any applicable Intercreditor Agreement. Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or Special Servicer’s 's Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan), access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion Holders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, (ii) as a convenience for the general public, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s 's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s 's Internet Website. In connection with providing access to the Trustee’s 's Internet Website or the Master Servicer’s 's Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C33)
Access to Certain Information. (a) Upon ten days prior written notice, the Master Servicer (with respect to the items in clauses (a), (b) (other than Distribution Date Statements), (c), (d), (e), (f), ) and (h) and (i) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (ce), (df), (g), (h) and (i) below) and the Trustee to the extent any such items are in its possession and the Trustee (with respect to the items in clauses (b) and (i) below and any other itemspossession, to the extent in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota)Loans, during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with (a) and (b) in the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person person identified by a Certificate Owner or Certificateholder Holder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)an interest, the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser anyone specified thereby and the Depositor, Depositor originals or copies of the following items: (a) this Agreement and any amendments thereto, (b) all Distribution Date Statements delivered to holders of the relevant Class of Certificates since the Closing Date and Date, (c) all reports, statements and analyses Officer's Certificates delivered by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (c) all Officer’s Certificates delivered by the Master Servicer or the Special Servicer since the Closing Date pursuant to Section 3.13Date, (d) all accountants’ ' reports delivered to the Master Servicer in respect of itself or the Special Servicer since the Closing Date as described in Section 3.14, (e) the most recent property inspection report prepared by or on behalf of the Master Special Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant delivered to Section 3.09the Master Servicer, (f) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of the Special Servicer and delivered to the Master Servicer, (g) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d)Servicer, (h) the Servicing File relating to each Mortgage Loan and (i) any and all Officer’s Officers' Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance waswas or, or if made, would be, be a Nonrecoverable Advance pursuant to Sections 3.03(eAdvance, and (i) any operating statements, budgets, rent rolls or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a)financial statements. Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the TrusteeSpecial Servicer, as the case may be, upon request and shall be provided to any of the Rating Agencies and Xxxxxx Brothers Inc. at no cost pursuant to any of their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (a) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (b) in the case of a prospective purchaser of a Certificate or an interest therein, confirmation executed by the requesting Person substantially in the form of Exhibit K-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser of a Certificate or an interest therein, is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; provided that such other Person confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access as permitted pursuant to the terms of this Agreement, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s, the Master Servicer’s or Special Servicer’s Internet Website without restriction as to access in compliance with the terms of this Agreement, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, Xxxxxx Brothers Inc., the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board FDIC and any other banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (to the extent such information is related to such Companion Loan or the related Mortgage Loan)Certificateholder, access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion HoldersCertificateholders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from the Certificateholder or Certificate Owner or holder of a Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, the Certificateholders or Certificate Owners or prospective transferees or holder of a Companion Loan, as applicabletransferees, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, requiring on site review in excess of 3 Business Days, and reasonable fees for employee time and for space.
. A Certificateholder may obtain the information contained in each Distribution Date Statement by sending a written request, together with any fee that State Street Bank and Trust Company may require, to State Street Bank and Trust Company, Corporate Trust Department, Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: First Union-Xxxxxx Brothers Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 1997-C1. Certificate Factor information may be obtained by potential purchasers of the Offered Certificates, by calling (b000) The 000-0000. In addition, if the Depositor or either of the Underwriters so directs the Trustee, the Trustee shall, and the Master Servicer may, but is not required to, will make available on or prior to the Distribution Date certain Mortgage Loan information contained in each month to the general public (i) the Distribution Date Statement via their respective Internet Websites, automated medium to any Person who places a telephone call to (ii000) as a convenience for the general public000-0000 and requests access to Street Fax, the Prospectus Supplement, the Prospectus and this Agreement on their respective Internet Websites and (iii) any other items at the request of the Depositor via their respective Internet WebsitesTrustee's automated fax back system. In additionAdditionally, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the Depositor. The Master Servicer may, but is not required to, make available each month via its Internet Website (i) to any interested party, the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer, the Restricted Servicer ReportsSpecial Servicer, the CMSA Financial File Certificateholders, the Depositor, the Underwriters, each Rating Agency, and Bloomberg, L.P. (and may in its discretion and upon receipt of written consent of the Underwriters publish on the internet) by means of electronic access to a datafile in the "CSSA 100.1" layout with the Delinquent Loss Status Report, Historical Loan Modification Report, Historical Loss Estimate Report, REO Status Report and the CMSA Property FileWatch List Report attached (provided such reports have been delivered to the Trustee pursuant to Section 3.12(c) in an electronic format acceptable to the Trustee) accessible by modem, as and to the extent such information has been received from the Master Servicer and the Special Servicer. Any Restricted Servicer Report or Unrestricted Servicer Report that The Trustee may disclaim responsibility for any information therein for which it is not available on the Master Servicer’s Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the original source. The Master Servicer, upon requestreceipt of written consent of the Underwriters, may publish on the internet any information that Trustee is obligated to publish herein on Bloomberg, L.P. provided that any Person otherwise entitled to access such report on expenses or liability arising therefrom shall not be an Additional Trust Fund Expense and shall be the sole responsibility of the Master Servicer’s Internet Website. In connection with providing access to the Trustee’s Internet Website or the Master Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable, may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “"Applicants” " with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to the Trustee, and such application states that the Applicants’ ' desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 five Business Days after the receipt of such application, send, at the Applicants’ ' expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
Access to Certain Information. (a) Upon ten days (10) days' prior written notice, the Master Servicer (with respect to the items in clauses (ai), (bii) (other than Distribution Date Statements, the Prospectus and the Prospectus Supplement), (ciii) (in the case of Annual Statements of Compliance delivered by the Master Servicer or any Additional Item 1123 Servicers retained or engaged thereby), (dv), (evi), (fviii), (hix) (in the case of Officer's Certificates delivered by the Master Servicer), (x) and (ixi) below, unless such item was not delivered to the Master Servicer), the Special Servicer (with respect to the items in clauses (ciii) (in the case of Annual Statements of Compliance delivered by the Special Servicer or any Additional Item 1123 Servicers retained or engaged thereby), (dvii), (gviii) (with respect to Specially Serviced Mortgage Loans), (hix) (in the case of Officer's Certificates delivered by the Special Servicer) and (ix) below) to the extent such items are in its possession and the Trustee (with respect to the items in clauses (bi), (ii), (iii), (iv) and (iix) below and any other items, to the extent any other items are in its possession) shall make available at their respective offices primarily responsible for administration of the Mortgage Loans (or or, in the case of the Trustee, at its Corporate Trust Office, except with respect to documents which constitute part of the Mortgage Files, which will be maintained at its offices in Minnesota), during normal business hours, or send to the requesting party, such party having been certified to the Trustee, the Master Servicer or the Special Servicer, as applicable, in accordance with clause (ai) and or (bii) in of the following paragraph, as appropriate, at the expense of such requesting party (unless otherwise provided in this Agreement), for review by any Certificate Owner or Certificateholder or any Person identified by a Certificate Owner or Certificateholder or its designated agent to the Trustee, the Master Servicer or the Special Servicer, as the case may be, as a prospective transferee of any Certificate or interest therein (or a Companion Loan licensed or any interest therein (to the extent registered investment adviser representing such information is related to such Companion Loan or the related Mortgage LoanPerson), the Trustee, the Rating Agencies, the Underwriters and any applicable regulator or potential purchaser anyone specified thereby and the Depositor, Depositor originals or copies of the following items: (ai) this Agreement and any amendments thereto, (bii) the Prospectus and Prospectus Supplement, all Distribution Date Statements delivered or otherwise made available to holders of the relevant Class of Certificates since the Closing Date and all reports, statements and analyses delivered or otherwise made available by the Master Servicer since the Closing Date pursuant to Section 3.12(c), (ciii) all Officer’s Certificates Annual Statements of Compliance delivered by and/or to the Master Servicer or the Special Servicer Trustee since the Closing Date pursuant to or as contemplated by Section 3.13, (div) all accountants’ reports Annual Assessment Reports and Annual Attestation Reports delivered with respect to and/or to the Master Servicer in respect of itself or the Special Servicer Trustee since the Closing Date pursuant to or as described in contemplated by Section 3.14, (ev) the most recent property inspection report prepared by or on behalf of or received by the Master Servicer in respect of each Mortgaged Property and any Environmental Assessments prepared pursuant to Section 3.09, (fvi) the most recent Mortgaged Property annual operating statements and rent roll, if any, collected by or on behalf of or received by the Master Servicer, (gvii) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Special Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (hviii) the Servicing File relating to each Mortgage Loan and Loan, (iix) any and all Officer’s Officers' Certificates and other evidence delivered by the Master Servicer or the Special Servicer, as the case may be, to support its determination that any Advance was, or if made, would be, a Nonrecoverable Advance pursuant to Sections Section 3.03(e) or 4.03(c), including appraisals affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a), and (x) all CMSA Operating Statement Analyses and CMSA NOI Adjustment Worksheets maintained by the Master Servicer or 137 Special Servicer. Copies of any and all of the foregoing items will be available from the Master Servicer, the Special Servicer or the Trustee, as the case may be, upon request request, and shall be provided to any of the Rating Agencies at no cost pursuant to their reasonable requests. In connection with providing access to or copies of the items described in the preceding paragraph pursuant to this Section 3.15, or with respect to the Controlling Class Representative, in connection with providing access to or copies of any items in accordance with this Agreement, the Trustee, the Master Servicer or the Special Servicer, as applicable, shall require: (ai) in the case of Certificate Owners and the Controlling Class Representative, a confirmation (which in the case of the Controlling Class Representative may be a standing confirmation) executed by the requesting Person substantially in the form of Exhibit K-1 L-1 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a beneficial holder of Book-Entry Certificates, or a representative of a beneficial holder of Book-Entry Certificates, and, subject to the last sentence of this paragraph, will keep such information confidential (except that such Certificate Owner and the Controlling Class Representative may provide such information to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (or a licensed or registered investment adviser representing such other Person), provided that such other Person (or a licensed or registered investment adviser representing such other Person) confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential); and (bii) in the case of a prospective purchaser transferee of a Certificate or an interest thereintherein (or a licensed or registered investment adviser representing such Person), confirmation executed by the requesting Person substantially in the form of Exhibit K-2 L-2 hereto (or such other form as may be reasonably acceptable to the Trustee, the Master Servicer or the Special Servicer, as applicable) generally to the effect that such Person is a prospective purchaser transferee of a Certificate or an interest thereintherein (or a licensed or registered investment adviser representing such Person), is requesting the information for use in evaluating a possible investment in Certificates and, subject to the last sentence of this paragraph, will otherwise keep such information confidential. The Holders of the Certificates, by their acceptance thereof, and the Controlling Class Representative, by its acceptance of its appointment, will be deemed to have agreed, subject to the last sentence of this paragraph, to keep such information confidential (except that any Holder may provide such information obtained by it to any other Person that holds or is contemplating the purchase of any Certificate or interest therein; therein (or a licensed or registered investment adviser representing such other Person), provided that such other Person (or a licensed or registered investment adviser representing such other Person) confirms in writing such ownership interest or prospective ownership interest and agrees to keep such information confidential) and agrees not to use such information in any manner that would violate federal, state or local securities laws. Notwithstanding the foregoing, no Certificateholder, Certificate Owner or prospective Certificateholder or Certificate Owner (or any licensed or registered investment adviser representing such Person) shall be obligated to keep confidential any information received from the Trustee, the Master Servicer or the Special Servicer, as applicable, pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or the Special Servicer’s 's Internet Website without restriction as to access as permitted pursuant to the terms of this Agreementaccess, as applicable, or has previously been filed with the Commission, and the Trustee, the Master Servicer or the Special Servicer, as applicable, shall not require either of the certifications contemplated by the second preceding sentence in connection with providing any information pursuant to this Section 3.15 that has previously been made available via the Trustee’s's, the Master Servicer’s 's or the Special Servicer’s 's Internet Website without restriction as to access in compliance with the terms of this Agreementaccess, as applicable, or has previously been filed with the Commission. Each of the Master Servicer and the Special Servicer shall afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve Board and any other 138 banking or insurance regulatory authority that may exercise authority over any Certificateholder or a Companion Loan or any interest therein (Certificate Owner or, to the extent such that the subject information is relates to a Loan Combination, a related to such Companion Non-Trust Loan or the related Mortgage Loan)Noteholder, access to any records regarding the Mortgage Loans and the servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Certificateholders or the Companion HoldersCertificateholders. Such access shall be afforded only upon reasonable prior written request and during normal business hours at the offices of the Master Servicer or the Special Servicer, as the case may be, designated by it. The Trustee, the Master Servicer, the Special Servicer and the Underwriters may require payment from a Certificateholder, Certificate Owner, prospective transferee (or a licensed or registered investment adviser representing such Person) or, in the Certificateholder or Certificate Owner or holder case of the ShopKo Portfolio Loan Combination, a Companion Loan, as applicablerelated ShopKo Portfolio Non-Trust Loan Noteholder, of a sum sufficient to cover the reasonable costs and expenses of providing any such information or access pursuant to this Section 3.15 to, or at the request of, such Certificateholder, Certificate Owner, prospective transferee (or a licensed or registered investment adviser representing such Person) or, in the Certificateholders or Certificate Owners or prospective transferees or holder case of the ShopKo Portfolio Loan Combination, a Companion Loanrelated ShopKo Portfolio Non-Trust Loan Noteholder, as applicable, including, without limitation, copy charges and, in the case of Certificateholders or Certificate Owners or holder of a Companion Loan, if applicable, any such Person requiring on site review in excess of 3 three (3) Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not required to, make available on or prior to the Distribution Date in each month to any Privileged Person (or, following receipt of written direction of the general public Depositor, any interested party)
(i) the Distribution Date Statement via their respective its Internet WebsitesWebsite, (ii) as a convenience for Privileged Persons (or, following receipt of written direction of the general publicDepositor, any interested parties) (and not in furtherance of the Prospectus Supplementdistribution thereof under the securities laws), this Agreement, the Prospectus and this Agreement the Prospectus Supplement on their respective its Internet Websites Website and (iii) any other items at the request of the Depositor via their respective Internet Websites. In addition, the Trustee shall make available each month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the CMSA Collateral Summary File to the general public on its Internet Website (on a password protected basis). The Trustee shall, upon written request, make available each month, on each Distribution Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and the CMSA Financial File to any Privileged Person and to any other Person upon the direction of the DepositorWebsite. The Master Servicer mayand the Special Servicer may each, but neither is not required to, make available each month via its Internet Website (i) to any Privileged Person (or, following receipt of written direction of the Depositor, any interested party), the Unrestricted Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and (ii) to any Privileged Person, with the use of a password provided by the Master Servicer or the Special Servicer, as the case may be, the Restricted Servicer Reports, the CMSA Financial File and the CMSA Property File. Any Restricted Servicer Report or Unrestricted Servicer Report that is not available on the Master Servicer’s 's Internet Website as described in the immediately preceding sentence by 5:00 p.m. (New York City time) on the related Distribution Date shall be provided (in electronic format, or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon request, to any Person otherwise entitled to access such report on the Master Servicer’s 's Internet Website. In connection with providing access to the Trustee’s Internet Website Master Servicer's or the Master Special Servicer’s 's Internet Website, the Trustee or the Master Servicer, as applicable, Servicer may require registration and the acceptance of a disclaimer. If three or more Holders or the Controlling Class Representative (hereinafter referred to as “Applicants” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single Applicant for these purposes) apply in writing to Trustee, and such application states that the Applicants’ desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee shall, within 5 Business Days after the receipt of such application, send, at the Applicants’ expense, the written communication proffered by the Applicants to all Certificateholders at their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be required to confirm, represent or warrant the accuracy or completeness of any other Person’s information or report included in any communication from the Master Servicer or the Special Servicer under this Agreement. Neither the Master Servicer nor the Trustee shall be liable for the dissemination of information in accordance with this Section 3.15(c). The Trustee makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Trustee’s Website and assumes no responsibility therefor. In addition, the Trustee, the Master Servicer and the Special Servicer may disclaim responsibility for any information distributed by the Trustee, the Master Servicer or the Special Servicer, respectively, for which it is not the original source.
(d) With respect to any Companion Loan, the Companion Holders shall receive and have access to any information described in this Section 3.15 which such Companion Holder is entitled to pursuant to the related Intercreditor Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2006-C4)