Appears in 24 contracts

Samples: Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2019-Cor5), Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2019-Cor5), Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2019-Cor5)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b)~~5(f) below) and the ~~Lead Securitization~~ Servicing ~~Agreement,~~ Agreement and ~~subject to~~ consistent with the ~~rights and consents, where required, of the Controlling Note Holder Representative~~Servicing Standard, the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other ~~remedy,~~ remedy and no ~~Non-Lead Securitization Note Holder~~ other Noteholder shall have any voting, consent or other rights whatsoever ~~except as explicitly set forth herein~~ with respect to the Lead Securitization ~~Note Holder~~Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the ~~Lead Securitization~~ Servicing ~~Agreement~~Agreement (including, without limitation, Section 5(f) below) and consistent with the Servicing Standard, each Non-Lead ~~Securitization Note Holder~~ Noteholder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) the rights, if any, that such ~~Note Holder~~ Non-Lead Noteholder has to, (i) call or cause the Lead Securitization ~~Note Holder~~ Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization ~~Note Holder~~ Noteholder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall not have any fiduciary duty to any Non-Lead ~~Securitization Note Holder~~ Noteholder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization ~~Note Holder~~ Noteholder from the obligation to make any disbursement of funds as set forth ~~herein or its obligation to follow~~ herein). (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Servicing ~~Standard~~ Agreement. Each Noteholder agrees to be bound by the terms of this Agreement and the Servicing Agreement. The Servicers shall service the Mortgage Loan in accordance with the terms of this Agreement (in including, without limitation, Section 5(f) below) and consistent with the ~~case~~ Servicing Standard. Servicing of the Mortgage Loan shall be carried out by the Master Servicer ~~or the Special Servicer) or any liability for failure to do so). Upon~~ and, if the Mortgage Loan ~~becoming~~ is a Specially Serviced Loan, by the Special Servicer, in each ~~Non-~~case pursuant to the Servicing Agreement and consistent with the Servicing Standard. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Lead Securitization Noteholder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of the Noteholders as a collective whole. The foregoing provisions of this Section 5(b) shall not limit or modify the rights of the Controlling Noteholder and/or the Controlling Noteholder Representative to exercise their respective rights specifically set forth under this Agreement. (c) Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement and this Agreement (including, without limitation, Sections 5(f) and 6), if the Servicer in connection with a Workout of the Mortgage Loan modifies the terms thereof in accordance herewith such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Mortgage Loan Rate or scheduled amortization payments on such Mortgage Loan are reduced, (iii) payments of interest or principal on such Mortgage Loan are waived, reduced or deferred or (iv) any other adjustment (other than an increase in the Mortgage Loan Rate or increase in scheduled amortization payments) is made to any of the terms of the Mortgage Loan, all payments to the Note ~~Holder hereby acknowledges~~ A Holders pursuant to Section 3 shall be made as though such Workout did not occur, with the ~~right~~ payment terms of each A Note remaining the same as they are on the date hereof, the full economic effect of all waivers, reductions or deferrals of amounts due on the Mortgage Loan attributable to such Workout shall be borne by the Note A Holders (pro rata based on the Principal Balances of their respective Notes). (d) All rights and ~~obligation~~ obligations of the Lead Securitization ~~Note Holder (or~~ Noteholder described hereunder may be exercised by the ~~Special Servicer acting~~ Servicers on behalf of the Lead Securitization ~~Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan~~ Noteholder in accordance with the ~~terms of the Lead Securitization~~ Servicing Agreement and this Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a Specially Serviced Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (be) If any Note is included as an asset of a ~~real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “~~REMIC~~”), then~~, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall each qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the ~~Note Holders~~ Noteholders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the ~~interest~~ interests of ~~each Note Holder~~ the Noteholders therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the ~~Note Holders~~ Noteholders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three ~~(3)~~ months after the earliest startup day of ~~the~~ any REMIC which includes ~~the Notes (~~all or a portion of any ~~portion thereof)~~A Note. ~~Each Note Holder agrees~~ The Noteholders agree that the provisions of this ~~paragraph~~ Section 5(e) shall be effected by compliance ~~with any REMIC provisions in~~ by the Lead Securitization Noteholder or its assignees with this Agreement or the Servicing Agreement ~~relating to~~ or any other agreement which governs the administration of the Mortgage ~~Loan~~Loan or the Lead Securitization Noteholder’s interests therein. All costs and expenses of compliance with this Section 5(e), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne (without reimbursement under Section 3) by each Noteholder with respect to the REMIC containing the Note owned by such Noteholder. Anything herein or in the ~~Lead Securitization~~ Servicing Agreement to the contrary notwithstanding, ~~if one of~~ in the ~~Notes~~ event that a Note is included in a ~~REMIC~~REMIC and the other Notes are not, ~~such~~ the other ~~Note Holder~~ Noteholders shall not be required to reimburse such Noteholder that deposited its Note ~~Holder~~ in the REMIC or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to ~~the~~ either such other ~~Note Holders~~ Noteholder be reduced to offset or make-up any such payment or deficit. (cf) ~~The~~ (i) Subject to clauses (ii) or (iii) below, if any consent, modification, amendment or waiver under or other action in respect of the Mortgage Loan (whether or not a Servicing Transfer Event has occurred and is continuing) that would constitute a Major Decision has been requested or proposed or any fact or circumstance has occurred requiring that a Major Decision be made, or if the Master Servicer or Special Servicer otherwise intends to make a Major Decision, then the Master Servicer or Special Servicer, as applicable, shall deliver prompt written notice thereof to the Controlling Noteholder and its Controlling Noteholder Representative, if any, at least ten (10) Business Days prior to taking action with respect to such Major Decision (or making a determination not to take action with respect to such Major Decision), and none of the Master Servicer, the Special Servicer or any other Person shall implement any decision with respect to such Major Decision (or make a determination not to take action with respect to such Major Decision) unless and until the Master Servicer or the Special Servicer, as applicable, has received the written consent of the Controlling Noteholder (or its Controlling Noteholder Representative). (ii) If the Master Servicer or Special Servicer, as applicable, has not received a response from the Controlling Noteholder (or its Controlling Noteholder Representative) with respect to such Major Decision within five (5) Business Days after delivery of the notice of such Major Decision, the Lead Securitization Noteholder (or the Special Servicer acting on its behalf) shall deliver an additional copy of the notice of such Major Decision in all caps bold 14-point font: “THIS IS A SECOND NOTICE. FAILURE TO RESPOND WITHIN FIVE (5) BUSINESS DAYS OF THIS SECOND NOTICE WILL RESULT IN A LOSS OF YOUR RIGHT TO CONSENT WITH RESPECT TO THIS DECISION,” and if the Controlling Noteholder fails to respond to the Lead Securitization Noteholder (or the Special Servicer acting on its behalf) with respect to any such proposed action within five (5) Business Days after receipt of such second notice, the Controlling Noteholder shall have no further consent rights with respect to such action (provided, however, that such failure to reply shall not affect the rights of the Controlling Noteholder to consent to any future actions). Notwithstanding the foregoing, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Servicer may take actions with respect to such Mortgaged Property before obtaining the consent of the Controlling Noteholder (or its Controlling Noteholder Representative) (or before consulting with any Non-Controlling Noteholder to the extent such Non-Controlling Noteholder has consultation rights with respect to such action) if the Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions prior to such consent would materially and adversely affect the interest of the Noteholders as a collective whole, and the Servicer has made a reasonable effort to contact the Controlling Noteholder. The foregoing shall not relieve the Lead Securitization Noteholder (or a Servicer acting on its behalf) of its duties to comply with the Servicing Standard. (iii) Notwithstanding the foregoing, the Lead Securitization Noteholder (or any Servicer acting on its behalf) shall not follow any advice, direction, objection or consultation provided by the Controlling Noteholder (or its Controlling Noteholder Representative) that would require or cause the Lead Securitization Noteholder (or any Servicer acting on its behalf) to violate any applicable law, including the REMIC Provisions, be inconsistent with the Servicing Standard, require or cause the Lead Securitization Noteholder (or any Servicer acting on its behalf) to violate provisions of this Agreement or the Servicing Agreement, require or cause the Lead Securitization Noteholder (or any Servicer acting on its behalf) to violate the terms of the Mortgage Loan, or materially expand the scope of the Lead Securitization Noteholder’s (or any Servicer acting on its behalf) responsibilities under this Agreement or the Servicing Agreement. The Special Servicer shall be ~~treated as a single loan for purposes~~ required to provide copies to each Non-Controlling Noteholder of ~~calculating~~ any notice, information and report that is required to be provided to the ~~Appraisal Reduction amount. Appraisal Reduction amounts~~ Controlling Noteholder pursuant to the Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report within the same time frame such notice, information and report is required to be provided to the Controlling Noteholder, and the Special Servicer shall be required to consult with each Non-Controlling Noteholder on a strictly non-binding basis, to the extent having received such notices, information and reports, any Non-Controlling Noteholder requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report, and consider alternative actions recommended by such Non-Controlling Noteholder; provided that after the expiration of a period of ten (10) Business Days from the delivery to any Non-Controlling Noteholder by the Special Servicer of written notice of a proposed action, together with copies of the notice, information and reports, the Special Servicer shall no longer be obligated to consult with such Non-Controlling Noteholder, whether or not such Non-Controlling Noteholder has responded within such ten (10) Business Day period (unless, the Special Servicer proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). After a Securitization of any Note that is not the Lead Securitization Note, references in this paragraph to a Non-Controlling Noteholder as such term relates to such Note shall mean the related Non-Lead Securitization Subordinate Class Representative. In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Noteholder shall have the right to attend annual meetings (which may be held telephonically or in person, at the discretion of the Servicer) with the Lead Securitization Noteholder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan ~~shall be allocated, first, to~~ are discussed. The Noteholders acknowledge that the ~~B Note, up to its outstanding principal balance, and then to~~ Lead Securitization Servicing Agreement may contain certain provisions that give the ~~A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest~~ Operating Advisor or ~~principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss~~ Risk Retention Consultation Party certain non-binding consultation rights with respect to Major Decisions and other events related to compliance with the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect Risk Retention Rules applicable to the ~~Mortgage Loan~~Lead Securitization.

Appears in 24 contracts

Samples: Agreement Between Noteholders (Bank 2020-Bnk27), Agreement Between Noteholders (Bank 2020-Bnk26), Agreement Between Noteholders (Benchmark 2020-Ig1 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell any Non-Lead Securitization Note together with the Lead Securitization Note in the manner set forth in the Lead Securitization Servicing Agreement. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) shall not be permitted to sell the Mortgage Loan if it becomes a Defaulted Loan without the written consent of the Non-Lead Securitization Note Holders (provided that such consent is not required if any Non-Lead Securitization Note Holder is the Mortgage Loan Borrower or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to the Non-Lead Securitization Note Holders: (a) at least fifteen (15) Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least ten (10) days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale, (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent Appraisal for the Mortgage Loan, and any documents in the Servicing File reasonably requested by any Non-Lead Securitization Note Holder that are material to the sale price of the Mortgage Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other offerors and the Directing Holder) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by any Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holders may waive any of the delivery or timing requirements set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-Controlling Note Holders and the applicable Non-Controlling Note Holder Representative shall be permitted to bid at any sale of the Mortgage Loan unless such person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, ~~such~~ but others are not, other Note ~~Holder~~ Holders whose Notes are not included in a REMIC shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 21 contracts

Samples: Co Lender Agreement (BMO 2022-C2 Mortgage Trust), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2022-Gc48), Co Lender Agreement (Bank 2022-Bnk41)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell any Non-Lead Securitization Note together with the Lead Securitization Note in the manner set forth in the Lead Securitization Servicing Agreement. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) shall not be permitted to sell the Mortgage Loan if it becomes a Defaulted Loan without the written consent of the Non-Lead Securitization Note Holders (provided that such consent is not required if any Non-Lead Securitization Note Holder is a Borrower Party) unless the Special Servicer has delivered to the Non-Lead Securitization Note Holders: (a) at least fifteen (15) Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least ten (10) days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale, (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent Appraisal for the Mortgage Loan, and any documents in the Servicing File reasonably requested by any Non-Lead Securitization Note Holder that are material to the sale price of the Mortgage Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other offerors and the Directing Holder) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by any Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holders may waive any of the delivery or timing requirements set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-Controlling Note Holders and the applicable Non-Controlling Note Holder Representative shall be permitted to bid at any sale of the Mortgage Loan unless such person is a Borrower Party. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower ~~Affiliate~~Party) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower ~~Affiliate~~ Party shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, ~~such~~ but others are not, other Note ~~Holder~~ Holders whose Notes are not included in a REMIC shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 17 contracts

Samples: Co Lender Agreement (BMO 2024-5c8 Mortgage Trust), Co Lender Agreement (BBCMS Mortgage Trust 2024-5c31), Co Lender Agreement (BMO 2024-5c8 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and ~~consents~~consent, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the ~~proposed~~ permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the ~~Mortgage Loan~~Mortgaged Property, and any documents in the ~~servicing file~~ Mortgage File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no not less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan, unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Accepted Servicing Practices, taking into account the interests of each of the Note Holders as a collective whole (taking into account that Note B is junior to the A Notes). The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as or an Affiliate of the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Controlling Note Holder or its Non-Controlling Note Holder Representative, within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event). Furthermore, during any time that the Controlling Note Holder is the holder of Note A-1-C-1, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required to consult on a non-binding basis with the Non-Controlling Note Holder or its Non-Controlling Note Holder Representative (until the occurrence and continuance of a consultation termination event under the related pooling and servicing agreement) and consider alternative actions recommended by the Non-Controlling Note Holder Representative with respect to any such Major Decisions (provided that if the Non-Controlling Note Holder does not consult, or notify the Special Servicer that it will not consult, to such Major Decisions within ten (10) business days, as applicable, the Non-Controlling Note Holder shall be deemed to have consulted to such Major Decisions). (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 16 contracts

Samples: Co Lender Agreement (Benchmark 2020-B19 Mortgage Trust), Co Lender Agreement (Benchmark 2020-B19 Mortgage Trust), Co Lender Agreement (DBJPM 2020-C9 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement ~~(including but not limited to Section 5(b))~~ and the Lead Securitization Servicing Agreement~~, and subject to the rights and consents, where required, of the Controlling Note Holder Representative~~, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-~~Lead Securitization~~ Controlling Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Non-Controlling Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-~~Lead Securitization~~ Controlling Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special ~~Servicer~~Servicer acting on behalf of the Lead Securitization Note Holder) or any liability for failure to do so). Upon the Mortgage Loan becoming a Specially Serviced Mortgage Loan, each Non-~~Lead Securitization~~ Controlling Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-~~Lead Securitization~~ Controlling Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each~~ the Non-~~Lead Securitization Note~~ Controlling Notes together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the ~~Lead Securitization Note Holder (or the~~ Special Servicer ~~acting on its behalf) will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ such loan becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if such Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a Borrower Affiliate) unless the Special Servicer has delivered to ~~each~~ such Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that ~~such~~ the Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder (or ~~its representative~~the related Non-Controlling Note Holder Representative) ~~that is not a Borrower Affiliate~~ shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is a Borrower Affiliate. Each Non-~~Lead Securitization~~ Controlling Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-~~Lead Securitization Notes~~Controlling Note. Each Non-~~Lead Securitization~~ Controlling Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-~~Lead Securitization~~ Controlling Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-~~Lead Securitization Notes~~Controlling Note, and the obligations of ~~the~~ each Non-~~Lead Securitization~~ Controlling Note ~~Holders~~ Holder to execute and deliver instruments or deliver the related Non-~~Lead Securitization~~ Controlling Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Defaulted Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement shall require the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Note Holders as a collective whole and the subordination of the B Notes to the A Notes. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Controlling Note Holder in its capacity as Non-Controlling Note Holder without such Non-Controlling Note Holder’s prior written consent. Each Non-Controlling Note Holder (unless it is the same Person as or a Borrower Affiliate) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and another Note is not, such other Note Holder shall not be required to reimburse ~~such~~ any Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 15 contracts

Samples: Co Lender Agreement (BMO 2023-C5 Mortgage Trust), Co Lender Agreement (BBCMS Mortgage Trust 2023-C19), Co Lender Agreement (Bank5 2023-5yr1)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction ~~amount~~Amount. Appraisal Reduction ~~amounts~~ Amounts with respect to the Mortgage Loan shall be allocated, first, to the B ~~Note~~Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances), up to its respective outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note B Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 13 contracts

Samples: Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2017-C7), Co Lender Agreement (UBS Commercial Mortgage Trust 2017-C4), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2017-P8)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, ~~such~~ but others are not, other Note ~~Holder~~ Holders whose Notes are not included in a REMIC shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction ~~amount~~Amount. Appraisal Reduction ~~amounts~~ Amounts with respect to the Mortgage Loan shall be allocated, first, to the B ~~Note~~Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances), up to its respective outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note B Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 13 contracts

Samples: Co Lender Agreement (Benchmark 2019-B9 Mortgage Trust), Co Lender Agreement (Benchmark 2018-B8 Mortgage Trust), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2018-C48)

Appears in 11 contracts

Samples: Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2017-C5), Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2017-Jp5), Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2016-Jp4)

Appears in 11 contracts

Samples: Agreement Between Note Holders (UBS Commercial Mortgage Trust 2017-C6), Agreement Between Note Holders (CCUBS Commercial Mortgage Trust 2017-C1), Agreement Between Note Holders (UBS Commercial Mortgage Trust 2017-C5)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b)~~4(f) below) and the ~~Lead Securitization~~ Servicing ~~Agreement,~~ Agreement and ~~subject to~~ consistent with the ~~rights and consents, where required, of the Controlling Note Holder Representative~~Accepted Servicing Practices, the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the ~~Mortgage Loan~~ Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other ~~remedy,~~ remedy and no ~~Non-Lead Securitization Note Holder~~ other Noteholder shall have any voting, consent or other rights whatsoever ~~except as explicitly set forth herein~~ with respect to the Lead Securitization ~~Note Holder~~Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage ~~Loan~~Loan except as set forth in this Agreement and the Servicing Agreement including the rights of any Note Holder in its capacity as the Controlling Noteholder to consent to the Major Decisions set forth in this Agreement. Subject to this Agreement and the Servicing Agreement (including, without limitation, Section 4(f) below) and consistent with the Accepted Servicing Practices, each Noteholder (other than the Lead Securitization ~~Servicing Agreement, each Non-Lead Securitization Note Holder~~ Noteholder) agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) the rights, if any, that such ~~Note Holder~~ Noteholder has to, (i) call or cause the Lead Securitization ~~Note Holder~~ Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the ~~Mortgage Loan~~ Borrower, including, without limitation, filing or causing the Lead Securitization ~~Note Holder~~ Noteholder to file any bankruptcy petition against the ~~Mortgage Loan~~ Borrower. The Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall not have any fiduciary duty to any Non-Lead ~~Securitization Note Holder~~ Noteholder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization ~~Note Holder~~ Noteholder from the obligation to make any disbursement of funds as set forth ~~herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so~~herein). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead ~~Securitization Note Holder~~ Noteholder hereby acknowledges the right and obligation of the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) to sell ~~the~~ each Non-Lead ~~Securitization Notes~~ Note together with the Lead Securitization Note (and any other Notes included in the Lead Securitization) as notes evidencing one whole loan in accordance with the terms of the ~~Lead Securitization~~ Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each ~~Non-Lead Securitization~~ Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the ~~Lead Securitization~~ Servicing Agreement and shall be required to require that all offers be submitted to the Trustee in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offer amount (subject to a cap of $2,500,000). Whether any cash offer constitutes a fair price for such Notes shall be determined by the Trustee; provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for such Notes, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Servicing Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the Appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for such Notes, the Trustee shall instruct the Appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Notes, the occupancy level and physical condition of the related Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent Appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Noteholders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Noteholder) ~~will~~ shall not be permitted to sell the Non-Lead Securitization Notes if they become a Defaulted Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization ~~Note Holder~~ Noteholder (provided that such consent is not required ~~from any~~ if such Non-Lead Securitization ~~Note Holder that~~ Noteholder is a Borrower ~~Affiliate~~Restricted Party) unless the Special Servicer has delivered to ~~each~~ such Non-Lead Securitization ~~Note Holder~~Noteholder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the ~~Mortgage Loan~~Non-Lead Securitization Notes; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the servicing file maintained by the Master Servicer and/or Special Servicer with respect to the Mortgage Loan reasonably requested by ~~such~~ the Non-Lead Securitization ~~Note Holder~~ Noteholder that are material to the price of the ~~Mortgage Loan;~~ Non-Lead Securitization Notes and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other ~~offerors~~offerors and the Controlling Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the ~~Servicer or the~~ Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-Lead Securitization ~~Note Holder~~ Noteholder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Servicing Agreement, each of the Controlling Noteholder, the Controlling Class Representative, any other Noteholder (or any controlling class representative or directing holder on its behalf under the Non-Lead Securitization Servicing Agreement~~, each~~ ) shall be permitted to bid at any sale of the Non-Lead Securitization Note ~~Holder (or its representative) that~~ unless such Person is ~~not~~ a Borrower ~~Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan~~Restricted Party. Each Non-Lead ~~Securitization Note Holder~~ Noteholder hereby appoints the Lead Securitization ~~Note Holder~~ Noteholder as its agent, and grants to the Lead Securitization ~~Note Holder~~ Noteholder an irrevocable power of attorney coupled with an interest, and ~~its~~ their proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the~~ its Non-Lead ~~Securitization Notes~~Note. Each Non-Lead ~~Securitization Note Holder~~ Noteholder further agrees that, upon the request of the Lead Securitization ~~Note Holder~~Noteholder, ~~each~~ such Non-Lead ~~Securitization Note Holder~~ Noteholder shall execute and deliver to or at the direction of Lead Securitization ~~Note Holder~~ Noteholder such powers of attorney or other instruments as the Lead Securitization ~~Note Holder~~ Noteholder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original Non-Lead ~~Securitization Note,~~ Note endorsed in blank, to or at the direction of the Lead Securitization ~~Note Holder~~ Noteholder in connection with the consummation of any such sale. The authority and obligation of the Lead Securitization ~~Note Holder~~ Noteholder to sell ~~the~~ each Non-Lead ~~Securitization Notes~~Note, and the obligations of ~~the~~ each Non-Lead ~~Securitization Note Holders~~ Noteholder to execute and deliver instruments or deliver ~~the~~ its Non-Lead ~~Securitization~~ Note upon request of the Lead Securitization ~~Note Holder~~Noteholder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which no Note is held in a Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Noteholder the benefit of any representation or warranty made by such seller or any document delivery obligation imposed on such seller under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such seller in connection with the Lead ~~Securitization is terminated in accordance with its terms~~Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as~~ Servicing Agreement. Each Noteholder agrees to be bound by the terms of the Servicing Agreement. The Lead Securitization Noteholder (or ~~as interests in~~the Master Servicer on its behalf) ~~a “qualified mortgage” within~~ shall service the ~~meaning~~ Mortgage Loan in accordance with the terms of ~~Section 860G(a)(3)~~ this Agreement, including without limitation, the rights of the ~~Code, (ii~~Controlling Noteholder set forth in Section 4(f) ~~any real property (~~below and ~~related personal property) acquired by or on behalf~~ consistent with the Accepted Servicing Practices. Servicing of ~~the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on~~ the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of~~ Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan, by the Special Servicer, in each ~~Note Holder therein~~ case pursuant to the Servicing Agreement and consistent with the Accepted Servicing Practices. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Lead Securitization Noteholder shall ~~at all times qualify as “foreclosure property” within~~ cause the ~~meaning of Section 860G(a)(8)~~ Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Accepted Servicing Practices, taking into account the interests of the ~~Code~~ Noteholders as a collective whole, in each case subject to the terms and conditions of this Agreement, and any Non-Lead Securitization Noteholder that is not a Borrower Restricted Party shall be deemed a third party beneficiary of such provisions of the Servicing Agreement. The foregoing provisions of this Section 4(b) shall not limit or modify the rights of the Controlling Noteholder and/or the Controlling Noteholder Representative to exercise their respective rights specifically set forth under this Agreement. (c) Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement and this Agreement (including, without limitation, Sections 4(f) and (5), if the Lead Securitization Noteholder in connection with a Workout of the Mortgage Loan modifies the terms thereof such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Interest Rate or scheduled amortization payments on such Mortgage Loan are reduced, (iii) ~~no Servicer may modify~~payments of interest or principal on such Mortgage Loan are waived, ~~waive~~ reduced or ~~amend~~ deferred or (iv) any ~~provision~~ other adjustment (other than an increase in the Interest Rate or increase in scheduled amortization payments) is made to any of the terms of the Mortgage Loan, ~~consent~~ such waiver, modification or amendment shall be effected, to the maximum extent reasonably possible, in a manner consistent with the payment priority set forth in Section 3(b), and to the extent it is not, payments to the Note A Holders, the Senior B Note Holders, Junior B Note Holders and the Note C Holders pursuant to Section 3 shall be made as though such Workout did not occur, with the payment terms of each Note remaining the same as they are on the date hereof, and, in any event, the full economic effect of all waivers, reductions or ~~withhold consent from any action~~ deferrals of amounts due on the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any~~ attributable to such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph Workout shall be ~~effected~~ borne by ~~compliance~~ the Noteholders in a manner consistent with the payment priorities in Section 3. Subject to the Servicing Agreement and this Agreement (including without limitation Sections 4(f) and 5), in the case of any ~~REMIC provisions in~~ modification or amendment described above, the Lead Securitization ~~Servicing Agreement relating~~ Noteholder will have the sole authority and ability to revise the ~~administration of the Mortgage Loan. Anything herein or~~ payment provisions set forth in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.above in

Appears in 11 contracts

Samples: Agreement Between Noteholders (BBCMS Mortgage Trust 2021-C10), Agreement Between Noteholders (Morgan Stanley Capital I Trust 2021-L5), Agreement Between Noteholders (Wells Fargo Commercial Mortgage Trust 2021-C59)

Appears in 10 contracts

Samples: Agreement Between Note Holders (Morgan Stanley Capital I Trust 2016-Bnk2), Agreement Between Note Holders (Wells Fargo Commercial Mortgage Trust 2016-Lc24), Agreement Between Note Holders (Wells Fargo Commercial Mortgage Trust 2016-Bnk1)

Administration of the Mortgage Loan. (a) Subject to this Agreement ~~(including but not limited to Section 5(b))~~ and the Lead Securitization Servicing Agreement~~, and subject to the rights and consents, where required, of the Controlling Note Holder Representative~~, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-~~Lead Securitization~~ Controlling Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Non-Controlling Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-~~Lead Securitization~~ Controlling Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special ~~Servicer~~Servicer acting on behalf of the Lead Securitization Note Holder) or any liability for failure to do so). Upon the Mortgage Loan becoming a Specially Serviced Mortgage Loan, each Non-~~Lead Securitization~~ Controlling Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-~~Lead Securitization~~ Controlling Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each~~ the Non-~~Lead Securitization Note~~ Controlling Notes together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the ~~Lead Securitization Note Holder (or the~~ Special Servicer ~~acting on its behalf) will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ such loan becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if such Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a Borrower Affiliate) unless the Special Servicer has delivered to ~~each~~ such Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that ~~such~~ the Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder (or ~~its representative~~the related Non-Controlling Note Holder Representative) ~~that is not a Borrower Affiliate~~ shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is a Borrower Affiliate. Each Non-~~Lead Securitization~~ Controlling Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-~~Lead Securitization Notes~~Controlling Note. Each Non-~~Lead Securitization~~ Controlling Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-~~Lead Securitization~~ Controlling Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-~~Lead Securitization Notes~~Controlling Note, and the obligations of ~~the~~ each Non-~~Lead Securitization~~ Controlling Note ~~Holders~~ Holder to execute and deliver instruments or deliver the related Non-~~Lead Securitization~~ Controlling Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Defaulted Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement shall require the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Note Holders as a collective whole and the subordination of the E Notes to the other Notes, the subordination of the D Notes to the A Notes, the B Notes and the C Notes, the subordination of the C Notes to the A Notes and the B Notes, and the subordination of the B Notes to the A Notes. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Operating Advisor, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Controlling Note Holder in its capacity as Non-Controlling Note Holder without such Non-Controlling Note Holder’s prior written consent. Each Non-Controlling Note Holder (unless it is the same Person as or a Borrower Affiliate) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and another Note is not, such other Note Holder shall not be required to reimburse ~~such~~ any Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 10 contracts

Samples: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2017-C41), Co Lender Agreement (UBS Commercial Mortgage Trust 2017-C4), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2017-C40)

Appears in 10 contracts

Samples: Agreement Between Note Holders (Bank 2019-Bnk16), Agreement Between Note Holders (Morgan Stanley Capital I Trust 2018-H4), Agreement Between Note Holders (Bank 2018-Bnk14)

Appears in 10 contracts

Samples: Agreement Between Note Holders (Bank 2022-Bnk42), Agreement Between Note Holders (Morgan Stanley Capital I Trust 2022-L8), Agreement Between Note Holders (Bank 2022-Bnk39)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell any Non-Lead Securitization Note together with the Lead Securitization Note in the manner set forth in the Lead Securitization Servicing Agreement and shall be required to require that all offers be submitted to the Certificate Administrator or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offer amount (subject to a cap of $2,500,000). Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement; provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received from an Interested Person represents a fair price for the Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee shall instruct the appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) shall not be permitted to sell the Mortgage Loan if it becomes a Defaulted Loan without the written consent of the Non-Lead Securitization Note Holders (provided that such consent is not required if any Non-Lead Securitization Note Holder is the Mortgage Loan Borrower or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to the Non-Lead Securitization Note Holders: (a) at least fifteen (15) Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least ten (10) days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale, (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent Appraisal for the Mortgage Loan, and any documents in the Servicing File reasonably requested by any Non-Lead Securitization Note Holder that are material to the sale price of the Mortgage Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other offerors and the Directing Holder) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by any Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holders may waive any of the delivery or timing requirements set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-Controlling Note Holders and the applicable Non-Controlling Note Holder Representative shall be permitted to bid at any sale of the Mortgage Loan unless such person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, ~~such~~ but others are not, other Note ~~Holder~~ Holders whose Notes are not included in a REMIC shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 9 contracts

Samples: Co Lender Agreement (BBCMS Mortgage Trust 2021-C10), Co Lender Agreement (Benchmark 2020-B21 Mortgage Trust), Co Lender Agreement (DBJPM 2020-C9 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow ~~the~~ Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced Loan~~defaulted loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on its behalf ~~of the Lead Securitization Note Holder~~) to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note together with~~ the ~~Lead Securitization~~ Notes in the manner set forth in the Lead Securitization Servicing Agreement and shall be required to require that all offers be submitted to the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder ~~(provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate)~~ unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms~~ foregoing, each of the ~~Lead Securitization Servicing Agreement~~Controlling Note Holder, ~~each~~ the Controlling Note Holder Representative, any Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and any Non-Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original ~~Non-Lead Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization ~~Note~~ Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization ~~is terminated~~ Note(s) are repurchased from the Lead Securitization Trust by the holder of such Lead Securitization Note(s) that sold such Lead Securitization Note(s) into such securitization trust in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note(s) or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note(s) upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note(s) that sold such Lead Securitization Note into the Lead Securitization Trust or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement and this Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with Accepted Servicing Practices, taking into account the interests of each of the Note Holders as a collective whole and taking into account the subordinate nature of the Junior Notes. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and/or the Controlling Class Representative on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is Mortgage Loan Borrower Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) [Reserved]. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide reasonable prior notice to each Non-Lead Securitization Note Holder (or its Note Holder Representative) of the implementation of any Major Decision or any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan and (ii) to use reasonable efforts to consult each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis if such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report provided to investors in the Lead Securitization relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report provided to the Controlling Class Representative (or that would have been provided to the Controlling Class Representative if it had not lost its consent and/or consultation rights with respect to the matter), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by a Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative). In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to an annual meeting (which may be held telephonically) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed. (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that ~~the Notes~~ each Note shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the ~~Code,~~ Code (for that purpose the loan-to-value test in Section 860G(a)(3) shall be applied by treating the Senior Notes and the Junior Notes as constituting a single debt instrument) (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a ~~REMIC~~REMIC and another is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 8 contracts

Samples: Agreement Between Note Holders (UBS Commercial Mortgage Trust 2017-C7), Agreement Between Note Holders (JPMDB Commercial Mortgage Securities Trust 2017-C7), Agreement Between Note Holders (Citigroup Commercial Mortgage Trust 2017-P8)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note ~~Holder~~Xxxxxx’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell any Non-Lead Securitization Note together with the Lead Securitization Note in the manner set forth in the Lead Securitization Servicing Agreement. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) shall not be permitted to sell the Mortgage Loan if it becomes a Defaulted Loan without the written consent of the Non-Lead Securitization Note Holders (provided that such consent is not required if any Non-Lead Securitization Note Holder is a Borrower Party) unless the Special Servicer has delivered to the Non-Lead Securitization Note Holders: (a) at least fifteen (15) Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least ten (10) days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale, (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent Appraisal for the Mortgage Loan, and any documents in the Servicing File reasonably requested by any Non-Lead Securitization Note Holder that are material to the sale price of the Mortgage Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other offerors and the Directing Holder) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by any Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holders may waive any of the delivery or timing requirements set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-Controlling Note Holders and the applicable Non-Controlling Note Holder Representative shall be permitted to bid at any sale of the Mortgage Loan unless such person is a Borrower Party. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower ~~Affiliate~~Party) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower ~~Affiliate~~ Party shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, ~~such~~ but others are not, other Note ~~Holder~~ Holders whose Notes are not included in a REMIC shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 8 contracts

Samples: Co Lender Agreement (BMO 2023-5c1 Mortgage Trust), Co Lender Agreement (Benchmark 2023-V2 Mortgage Trust), Co Lender Agreement (BBCMS Mortgage Trust 2023-C19)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow ~~the~~ Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Mortgage Loan Borrower ~~Affiliate~~Related Party) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Mortgage Loan Borrower ~~Affiliate~~ Related Party shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction ~~amount~~Amount. Appraisal Reduction ~~amounts~~ Amounts with respect to the Mortgage Loan shall be allocated, first, to the B ~~Note~~Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances), up to its respective outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 8 contracts

Samples: Co Lender Agreement (BBCMS Mortgage Trust 2019-C3), Co Lender Agreement (UBS Commercial Mortgage Trust 2018-C15), Co Lender Agreement (BBCMS Mortgage Trust 2018-C2)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b)~~5(f) below) and the ~~Lead Securitization~~ Servicing ~~Agreement,~~ Agreement and ~~subject to~~ consistent with the ~~rights and consents, where required, of the Controlling Note Holder Representative~~Servicing Standard, the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other ~~remedy,~~ remedy and no ~~Non-Lead Securitization Note Holder~~ other Noteholder shall have any voting, consent or other rights whatsoever ~~except as explicitly set forth herein~~ with respect to the Lead Securitization ~~Note Holder~~Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the ~~Lead Securitization~~ Servicing ~~Agreement~~Agreement (including, without limitation, Section 5(f) below) and consistent with the Servicing Standard, each Non-Lead ~~Securitization Note Holder~~ Noteholder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) the rights, if any, that such ~~Note Holder~~ Non-Lead Noteholder has to, (i) call or cause the Lead Securitization ~~Note Holder~~ Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization ~~Note Holder~~ Noteholder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall not have any fiduciary duty to any Non-Lead ~~Securitization Note Holder~~ Noteholder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization ~~Note Holder~~ Noteholder from the obligation to make any disbursement of funds as set forth ~~herein or its obligation to follow~~ herein). (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Servicing ~~Standard~~ Agreement. Each Noteholder agrees to be bound by the terms of this Agreement and the Servicing Agreement. The Servicers shall service the Mortgage Loan in accordance with the terms of this Agreement (in including, without limitation, Section 5(f) below) and consistent with the ~~case~~ Servicing Standard. Servicing of the Mortgage Loan shall be carried out by the Master Servicer ~~or the Special Servicer) or any liability for failure to do so). Upon~~ and, if the Mortgage Loan ~~becoming~~ is a Specially Serviced Loan, by the Special Servicer, in each ~~Non-~~case pursuant to the Servicing Agreement and consistent with the Servicing Standard. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Lead Securitization Noteholder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of the Noteholders as a collective whole. The foregoing provisions of this Section 5(b) shall not limit or modify the rights of the Controlling Noteholder and/or the Controlling Noteholder Representative to exercise their respective rights specifically set forth under this Agreement. (c) Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement and this Agreement (including, without limitation, Sections 5(f) and 6), if the Servicer in connection with a Workout of the Mortgage Loan modifies the terms thereof in accordance herewith such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Mortgage Loan Rate or scheduled amortization payments on such Mortgage Loan are reduced, (iii) payments of interest or principal on such Mortgage Loan are waived, reduced or deferred or (iv) any other adjustment (other than an increase in the Mortgage Loan Rate or increase in scheduled amortization payments) is made to any of the terms of the Mortgage Loan, all payments to the Note ~~Holder hereby acknowledges~~ A Holders pursuant to Section 3 shall be made as though such Workout did not occur, with the ~~right~~ payment terms of each A Note remaining the same as they are on the date hereof, the full economic effect of all waivers, reductions or deferrals of amounts due on the Mortgage Loan attributable to such Workout shall be borne by the Note A Holders (pro rata based on the Principal Balances of their respective Notes). (d) All rights and ~~obligation~~ obligations of the Lead Securitization ~~Note Holder (or~~ Noteholder described hereunder may be exercised by the ~~Special Servicer acting~~ Servicers on behalf of the Lead Securitization ~~Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan~~ Noteholder in accordance with the ~~terms of the Lead Securitization~~ Servicing Agreement and this Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a Specially Serviced Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (be) If any Note is included as an asset of a ~~real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “~~REMIC~~”), then~~, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall each qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the ~~Note Holders~~ Noteholders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the ~~interest~~ interests of ~~each Note Holder~~ the Noteholders therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the ~~Note Holders~~ Noteholders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three ~~(3)~~ months after the earliest startup day of ~~the~~ any REMIC which includes ~~the Notes (~~all or a portion of any ~~portion thereof)~~A Note. ~~Each Note Holder agrees~~ The Noteholders agree that the provisions of this ~~paragraph~~ Section 5(e) shall be effected by compliance ~~with any REMIC provisions in~~ by the Lead Securitization Noteholder or its assignees with this Agreement or the Servicing Agreement ~~relating to~~ or any other agreement which governs the administration of the Mortgage ~~Loan~~Loan or the Lead Securitization Noteholder’s interests therein. All costs and expenses of compliance with this Section 5(e), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne (without reimbursement under Section 3) by each Noteholder with respect to the REMIC containing the Note owned by such Noteholder. Anything herein or in the ~~Lead Securitization~~ Servicing Agreement to the contrary notwithstanding, ~~if one of~~ in the ~~Notes~~ event that a Note is included in a ~~REMIC~~REMIC and the other Notes are not, ~~such~~ the other ~~Note Holder~~ Noteholders shall not be required to reimburse such Noteholder that deposited its Note ~~Holder~~ in the REMIC or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to ~~the~~ either such other ~~Note Holders~~ Noteholder be reduced to offset or make-up any such payment or deficit. (cf) ~~The~~ (i) Subject to clauses (ii) or (iii) below, if any consent, modification, amendment or waiver under or other action in respect of the Mortgage Loan (whether or not a Servicing Transfer Event has occurred and is continuing) that would constitute a Major Decision has been requested or proposed or any fact or circumstance has occurred requiring that a Major Decision be made, or if the Master Servicer or Special Servicer otherwise intends to make a Major Decision, then the Master Servicer or Special Servicer, as applicable, shall ~~be treated as a single loan for purposes of calculating~~ deliver prompt written notice thereof to the ~~Appraisal Reduction amount. Appraisal Reduction amounts~~ Controlling Noteholder and its Controlling Noteholder Representative, if any, at least ten (10) Business Days prior to taking action with respect to ~~the Mortgage Loan shall be allocated, first,~~ such Major Decision (or making a determination not to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss take action with respect to ~~the Mortgage Loan~~such Major Decision), and ~~after~~ none of the ~~Note B Principal Balance has been reduced to zero~~Master Servicer, the Special Servicer or any other Person shall ~~reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by~~ implement any ~~Realized Loss~~ decision with respect to such Major Decision (or make a determination not to take action with respect to such Major Decision) unless and until the ~~Mortgage Loan~~Master Servicer or the Special Servicer, as applicable, has received the written consent of the Controlling Noteholder (or its Controlling Noteholder Representative).

Appears in 8 contracts

Samples: Agreement Between Noteholders (Benchmark 2020-B19 Mortgage Trust), Agreement Between Noteholders (DBJPM 2020-C9 Mortgage Trust), Agreement Between Noteholders (JPMDB Commercial Mortgage Securities Trust 2020-Cor7)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell any Non-Lead Securitization Note together with the Lead Securitization Note in the manner set forth in the Lead Securitization Servicing Agreement. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) shall not be permitted to sell the Mortgage Loan if it becomes a Defaulted Loan without the written consent of the Non-Lead Securitization Note Holders (provided that such consent is not required if any Non-Lead Securitization Note Holder is the Mortgage Loan Borrower or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to the Non-Lead Securitization Note Holders: (a) at least fifteen (15) Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least ten (10) days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale, (c) at least ten (10) days prior to the proposed sale date, a copy of the most recent Appraisal for the Mortgage Loan, and any documents in the Servicing File reasonably requested by any Non-Lead Securitization Note Holder that are material to the sale price of the Mortgage Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other offerors and the Directing Holder) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by any Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holders may waive any of the delivery or timing requirements set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-Controlling Note Holders and the applicable Non-Controlling Note Holder Representative shall be permitted to bid at any sale of the Mortgage Loan unless such person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least ~~15 business days~~ fifteen (15) Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, ~~such~~ but others are not, other Note ~~Holder~~ Holders whose Notes are not included in a REMIC shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 7 contracts

Samples: Co Lender Agreement (BBCMS Mortgage Trust 2024-C30), Co Lender Agreement (BBCMS Mortgage Trust 2024-5c27), Co Lender Agreement (Bank5 2024-5yr7)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note ~~Holder Representative~~Holder, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, no Non-Lead Securitization Note Holder shall have any right to, and each Non-Lead Securitization Note Holder ~~agrees that it shall have no right to, and~~ hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Loan to sell the ~~Non-Lead Securitization~~ Notes together ~~with the Lead Securitization Notes~~ as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing ~~Agreement~~Agreement and shall require that all offers be submitted to the Special Servicer in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person. Absent an offer at least equal to the Purchase Price, no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two other offers are received from independent third parties. In ~~connection~~ determining whether any offer from an Interested Person received represents a fair price for the Mortgage Loan, the Trustee shall rely on the most recent Appraisal (or update of such Appraisal) conducted in accordance with the Lead Securitization Servicing Agreement within the preceding nine (9)-month period or, in the absence of any such ~~sale~~Appraisal, on a new Appraisal. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for the Mortgage Loan, the Special Servicer shall ~~be required~~ take into account (in addition to ~~sell each Non-Lead Securitization Note together with~~ the ~~Lead Securitization Notes in~~ results of any Appraisal or updated Appraisal or narrative appraisal that it may have obtained within the ~~manner set forth in~~ prior nine (9) months pursuant to the Lead Securitization Servicing Agreement) among other factors, the period and amount of the occupancy level and physical condition of the Mortgaged Property and the state of the local economy. In determining whether any offer received from an Interested Person represents a fair price for any such Defaulted Loan, the Trustee shall rely on the most recent Appraisal (or update of such Appraisal) of the related Mortgaged Property conducted in accordance with this Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. Except as provided in the following paragraph, the cost of any Appraisal will be covered by, and will be reimbursable as, a Servicing Advance by the Master Servicer. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required ~~from any~~ if the related Non-Lead Securitization Note ~~Holder that~~ is held by a Borrower ~~Affiliate~~Party) unless the Special Servicer has delivered to ~~each~~ such Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 ten (10) days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 ten (10) days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the sale price of the Mortgage ~~Loan;~~ Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the Lead Securitization Note Holder Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, however, that such Non-Lead Securitization Note Holder may waive any ~~of the~~ delivery or timing requirements ~~described~~ set forth in this ~~sentence~~sentence only for itself. Subject to the ~~terms~~ foregoing, each of the ~~Lead Securitization Servicing Agreement~~Controlling Note Holder, ~~each~~ the Controlling Note Holder Representative, the Non-~~Lead Securitization~~ Controlling Note Holders and the Non-Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ Representatives shall be permitted to submit an offer at any sale of the Mortgage Loan (unless such Person is a Borrower Party). Notwithstanding anything contained in the preceding paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the offering Interested Person purchaser) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing loans similar to the Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan. If the Trustee designates such third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable fees of, and the costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable, from the offering Interested Person. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-Lead Securitization ~~Notes~~Note. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ such Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the original related ~~original~~ Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization ~~Note~~ Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the Initial Note Holder from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Initial Note Holder with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by the related Initial Note Holder with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to a Non-Lead Securitization Note Holder the benefit of any representation or warranty made by such Initial Note Holder or any document delivery obligation imposed on such Initial Note Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Initial Note Holder in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest~~ Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each Note ~~Holder therein shall at all times qualify as “foreclosure property” within~~ Holder. The Note Holders agree to be bound by the ~~meaning of Section 860G(a)(8)~~ terms of the ~~Code~~ Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially and adversely affect any Non-Lead Securitization Note Holder in its capacity as a Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (~~iii~~unless it is a Borrower Party) no shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer ~~may modify~~or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, ~~waive~~ information and report that it is required to provide to the Lead Securitization Note Holder Representative pursuant to the Lead Securitization Servicing Agreement (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Note Holder Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or ~~amend~~ a Consultation Termination Event or effectively equivalent period) with respect to any ~~provision~~ Major Decision or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, ~~consent~~ to a Non-Lead Securitization Note Holder (or ~~withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the~~ its Non-Lead Securitization Note ~~Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan~~Holder Representative), within the ~~meaning of Section 1.860G-2(b) of~~ same time frame it is required to provide to the ~~regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each~~ Lead Securitization Note Holder ~~agrees that~~ Representative (for this purpose, without regard to whether such items are actually required to be provided to the ~~provisions~~ Lead Securitization Note Holder Representative under the Lead Securitization Servicing Agreement due to the occurrence of ~~this paragraph shall be effected by compliance with~~ a Control Termination Event or a Consultation Termination Event or effectively equivalent period, but subject to any ~~REMIC provisions~~ limitations in the Lead Securitization Servicing Agreement ~~relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC,~~ regarding providing such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect information to the Mortgage Loan ~~shall be allocated, first~~Borrower or those who have certain relationships with the Mortgage Loan Borrower) and (ii) to consult with each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the ~~B Note~~extent having received such notices, ~~up to~~ information and reports, such Non-Controlling Note Holder (or its ~~outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d~~Non-Controlling Note Holder Representative) ~~Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss~~ requests consultation with respect to any such Major Decision or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note ~~B Principal Balance has been reduced to zero, the Servicer shall reduce the~~ Holder (or its Non-Controlling Note ~~A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.~~Holder

Appears in 7 contracts

Samples: Agreement Between Note Holders (Bank 2019-Bnk19), Agreement Between Note Holders (Bank 2019-Bnk18), Agreement Between Note Holders (Bank 2018-Bnk14)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell ~~the~~ each Non-Lead Securitization ~~Notes~~ Note together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required ~~from any~~ if such Non-Lead Securitization Note Holder ~~that~~ is held by a Borrower ~~Affiliate~~Party) unless the Special Servicer has delivered to ~~each~~ such Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage ~~Loan;~~ Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to any other ~~offerors~~offerors and the Lead Securitization Subordinate Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this ~~sentence~~sentence for itself. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and each Non-Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is a Borrower Party. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-Lead Securitization ~~Notes~~Note. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ such Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of the Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the original related ~~original~~ Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ a Non-Lead Securitization ~~Notes~~Note, and the obligations of the related Non-Lead Securitization Note ~~Holders~~ Holder to execute and deliver instruments or deliver the related Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which Lead Securitization Note is repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization ~~is terminated~~ Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the~~ is a Specially Serviced Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or ~~any portion thereof). Each Note Holder agrees that~~ to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement relating~~ Agreement), by the Special Servicer, in each case pursuant to the ~~administration~~ Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of all Note Holders as a collective whole. The Note Holders agree to be bound by the terms of the ~~Mortgage Loan~~Lead Securitization Servicing Agreement. ~~Anything herein or~~ All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is a Borrower Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to ~~the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person~~ its rights as specifically provided for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficittherein. (c) The ~~Mortgage Loan~~ Controlling Note Holder (or its Controlling Note Holder Representative) shall ~~be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated~~have, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, all of the same rights and ~~after~~ powers of the ~~Note B Principal Balance has been reduced~~ Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement with respect to ~~zero~~the other mortgage loans included in the Lead Securitization, without limitation, the right to consent and/or consult regarding Major Decisions and other servicing matters, the right to advise (1) the Special Servicer ~~shall reduce~~ with respect to all Specially Serviced Loans and (2) the ~~Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case~~Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, ~~not below zero) by any Realized Loss~~ and the right to direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Lead Securitization Subordinate Class Representative may deem advisable or as to which provision is otherwise made therein, in each case subject to the terms and conditions of the Lead Securitization Servicing Agreement (including the Servicing Standard). (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event or effectively equivalent period) with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan., to each Non-Lead Securitization Note Holder (or its Non-Lead Securitization Subordinate Class Representative), within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event or effectively equivalent period, but subject to any limitations in the Lead Securitization Servicing Agreement regarding providing such information to the Mortgage Loan Borrower or those who have certain relationships with the Mortgage Loan Borrower) and (ii) to consult with each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten

Appears in 7 contracts

Samples: Co Lender Agreement (GS Mortgage Securities Trust 2018-Gs9), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2017-C42), Co Lender Agreement (Bank 2017-Bnk9)

Administration of the Mortgage Loan. (a) Subject to this Agreement ~~(including but not limited to Section 5(b))~~ and the Lead Securitization Servicing Agreement~~, and subject to the rights and consents, where required, of the Controlling Note Holder Representative~~, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-~~Lead Securitization~~ Controlling Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Non-Controlling Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-~~Lead Securitization~~ Controlling Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special ~~Servicer~~Servicer acting on behalf of the Lead Securitization Note Holder) or any liability for failure to do so). Upon the Mortgage Loan becoming a Specially Serviced Mortgage Loan, each Non-~~Lead Securitization~~ Controlling Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-~~Lead Securitization~~ Controlling Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each~~ the Non-~~Lead Securitization Note~~ Controlling Notes together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the ~~Lead Securitization Note Holder (or the~~ Special Servicer ~~acting on its behalf) will~~ shall not be permitted to sell the Mortgage Loan if such loan becomes the ~~Mortgage Loan becomes a Specially Serviced~~ Defaulted Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if such Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a Borrower Affiliate) unless the Special Servicer has delivered to ~~each~~ such Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that ~~such~~ the Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder (or ~~its representative~~the related Non-Controlling Note Holder Representative) ~~that is not a Borrower Affiliate~~ shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is a Borrower Affiliate. Each Non-~~Lead Securitization~~ Controlling Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-~~Lead Securitization Notes~~Controlling Note. Each Non-~~Lead Securitization~~ Controlling Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-~~Lead Securitization~~ Controlling Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-~~Lead Securitization Notes~~Controlling Note, and the obligations of ~~the~~ each Non-~~Lead Securitization~~ Controlling Note ~~Holders~~ Holder to execute and deliver instruments or deliver the related Non-~~Lead Securitization~~ Controlling Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Defaulted Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement shall require the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Note Holders as a collective whole and the subordination of the E Notes to the other Notes, the subordination of the D Notes to the A Notes, the B Notes and the C Notes, the subordination of the C Notes to the A Notes and the B Notes, and the subordination of the B Notes to the A Notes. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Controlling Note Holder in its capacity as Non-Controlling Note Holder without such Non-Controlling Note Holder’s prior written consent. Each Non-Controlling Note Holder (unless it is the same Person as or a Borrower Affiliate) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and another Note is not, such other Note Holder shall not be required to reimburse ~~such~~ any Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 7 contracts

Samples: Co Lender Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2016-C31), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2016-Lc24), Co Lender Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2016-C30)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and ~~consents~~consent, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a Borrower ~~Affiliate~~Related Party) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the ~~proposed~~ permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the ~~Mortgage Loan~~Mortgaged Property, and any documents in the ~~servicing file~~ Mortgage File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no not less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan, unless such Person is a Borrower Related Party. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Accepted Servicing Practices, taking into account the interests of each of the Note Holders as a collective whole (taking into account that Note B is junior to the A Notes). The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is a Borrower Related Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Controlling Note Holder or its Non-Controlling Note Holder Representative, within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) to consult on a non-binding basis with the Non-Controlling Note Holder or its Non-Controlling Note Holder Representative (until the occurrence and continuance of a consultation termination event under the related pooling and servicing agreement) and consider alternative actions recommended by the Non-Controlling Note Holder Representative with respect to any such Major Decisions (provided that if the Non-Controlling Note Holder does not consult, or notify the Special Servicer that it will not consult, to such Major Decisions within ten (10) business days, as applicable, the Non-Controlling Note Holder shall be deemed to have consulted to such Major Decisions). (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 6 contracts

Samples: Co Lender Agreement (Bank 2021-Bnk37), Co Lender Agreement (3650R 2021-Pf1 Commercial Mortgage Trust), Co Lender Agreement (Morgan Stanley Capital I Trust 2021-L7)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and ~~consents~~consent, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the ~~proposed~~ permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the ~~Mortgage Loan~~Mortgaged Property, and any documents in the ~~servicing file~~ Loan File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no not less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan, unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Note Holders as a collective whole. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as or an Affiliate of the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the same rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement with respect to the other mortgage loans included in the Lead Securitization, including without limitation, the right to consent and/or consult regarding Major Decisions and other servicing matters, the right to advise (1) the Special Servicer with respect to all Specially Serviced Loans and (2) the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, and the right to direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Lead Securitization Subordinate Class Representative may deem advisable or as to which provision is otherwise made therein, in each case subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to each Non-Controlling Note Holder or its Non-Controlling Note Holder Representative, within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event or effectively equivalent period, but subject to any limitations in the Lead Securitization Servicing Agreement regarding providing such information to the Mortgage Loan Borrower or those who have certain relationships with the Mortgage Loan Borrower) and (ii) to consult on a non-binding basis with each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan; provided that that after the expiration of a period of 10 Business Days from the delivery to each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Lead Securitization Subordinate Class Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult with such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such 10 Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Servicer or Special Servicer, acting on its behalf) may make any Major Decision or take any action set forth in the Asset Status Report before the expiration of the aforementioned 10 Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative). (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 6 contracts

Samples: Co Lender Agreement (GS Mortgage Securities Trust 2018-Gs10), Co Lender Agreement (Benchmark 2018-B4 Mortgage Trust), Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2018-C8)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no the Non-Lead Securitization Note ~~Holder~~ Holders shall have ~~any~~ no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, ~~each~~ the Non-Lead Securitization Note ~~Holder agrees~~ Holders agree that it they shall have no right to, and hereby presently and irrevocably ~~assigns~~ assign and ~~conveys~~ convey to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note ~~Holder has~~ Holders have to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to ~~any~~ the Non-Lead Securitization Note ~~Holder~~ Holders in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, ~~each~~ the Non-Lead Securitization Note ~~Holder~~ Holders hereby ~~acknowledges~~ acknowledge the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each~~ any Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement and shall be required to require that all offers be submitted to the Certificate Administrator or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement; provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received from an Interested Person represents a fair price for the Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the Appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee shall instruct the Appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of ~~each~~ the Non-~~Lead Securitization~~ Controlling Note ~~Holder~~ Holders (provided that such consent is not required ~~from~~ if any Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ the Non-~~Lead Securitization~~ Controlling Note ~~Holder~~Holders: (a) at least ~~15 business days~~ fifteen (15) Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 ten (10) days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 ten (10) days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by ~~such~~ any Non-~~Lead Securitization~~ Controlling Note Holder that are material to the sale price of the Mortgage ~~Loan;~~ Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other ~~offerors~~offerors and the Lead Securitization Subordinate Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by ~~the Servicer or the Special~~ any Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note ~~Holder~~ Holders may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-~~Lead Securitization~~ Controlling Note Holders and the applicable Non-Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ Representative shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. ~~Each~~ The Non-Lead Securitization Note ~~Holder~~ Holders hereby ~~appoints~~ appoint the Lead Securitization Note Holder as ~~its~~ their agent, and ~~grants~~ grant to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and ~~its~~ their proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the~~ Non-Lead Securitization Notes. ~~Each~~ The Non-Lead Securitization Note ~~Holder~~ Holders further ~~agrees~~ agree that, upon the request of the Lead Securitization Note Holder, ~~each~~ the Non-Lead Securitization Note ~~Holder~~ Holders shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the ~~related~~ original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-Lead Securitization ~~Notes~~Note, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver ~~the~~ any Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the Initial Note A-1 Holder from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by the Initial Note A-1 Holder with respect to Lead Securitization Note or material document defect with respect to the documents delivered by the Initial Note A-1 Holder with respect to Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to the Non-Lead Securitization Note Holders the benefit of any representation or warranty made by the Initial Note A-1 Holder or any document delivery obligation imposed on the Initial Note A-1 Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by the Initial Note A-1 Holder in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage~~ is a Specially Serviced Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or ~~any portion thereof). Each Note Holder agrees that~~ to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement relating~~ Agreement), by the Special Servicer, in each case pursuant to ~~the administration of the Mortgage Loan. Anything herein or in~~ the Lead Securitization Servicing ~~Agreement~~ Agreement. Notwithstanding anything to the contrary ~~notwithstanding~~contained herein, ~~if one of~~ in accordance with the ~~Notes is included in a REMIC~~Lead Securitization Servicing Agreement, ~~such other~~ the Lead Securitization Note Holder shall ~~not be required~~ cause the Master Servicer and the Special Servicer to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to service and administer the Mortgage Loan ~~shall be allocated~~in accordance with the Servicing Standard, ~~first, to~~ taking into account the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount interests of ~~interest or principal due to~~ the Note Holders ~~under Section 3 hereof~~as a collective whole. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the ~~Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero~~Special Servicer, the ~~Servicer~~ Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall ~~reduce~~ not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without the Non-Lead Securitization Note ~~A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.~~Holder’s prior written

Appears in 6 contracts

Samples: Co Lender Agreement (Bank5 2024-5yr5), Co Lender Agreement (Benchmark 2023-B40 Mortgage Trust), Co Lender Agreement (Bank5 2023-5yr4)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan ~~Borrower~~ Borrowers or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan ~~Borrower~~Borrowers, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan ~~Borrower~~Borrowers. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan ~~Borrower~~Borrowers, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction ~~amount~~Amount. Appraisal Reduction ~~amounts~~ Amounts with respect to the Mortgage Loan shall be ~~allocated, first, to the B Note, up to its outstanding principal balance, and then~~ allocated to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note A Holders under Section 3 hereof~~, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero~~, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 6 contracts

Samples: Co Lender Agreement (BBCMS Mortgage Trust 2019-C4), Co Lender Agreement (Benchmark 2019-B12 Mortgage Trust), Co Lender Agreement (CSAIL 2019-C16 Commercial Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no the Non-Lead Securitization Note Holder shall have ~~any~~ no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, ~~each~~ the Non-Lead Securitization Note Holder agrees that it shall have no right to, and the Non-Lead Securitization Note Holders each hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to ~~any~~ the Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Each Note Holder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Note Holder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Lead Securitization Servicing Agreement (subject at all times to the rights of the Note Holder set forth herein and in the Lead Securitization Servicing Agreement). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, ~~each~~ the Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the ~~Non-Lead Securitization~~ Notes together ~~with the Lead Securitization Notes~~ as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ the Notes together ~~with~~ as notes evidencing one whole loan and shall require that all offers be submitted to the ~~Lead Securitization Notes~~ Trustee in ~~the manner set forth in the Lead Securitization Servicing Agreement~~writing. ~~Notwithstanding the foregoing, the~~ The Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan ~~if the Mortgage Loan becomes a Specially Serviced Loan~~ without the written consent of ~~each~~ the Non-Lead Securitization Note ~~Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate)~~ Holders unless the Special Servicer has delivered to ~~each~~ such Non-Lead Securitization Note ~~Holder~~Holders: (a) at least ~~15 business days~~ fifteen (15) Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 ten (10) days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 ten (10) days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan;~~ Holders and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the related “Subordinate Class Representative” (or other similar term)) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed ~~sale; provided~~ sale provided, that such Non-Lead Securitization Note ~~Holder~~ Holders may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the ~~terms~~ foregoing, each of the ~~Lead Securitization Servicing Agreement~~Controlling Note Holder, ~~each~~ the Controlling Note Holder Representative, the Non-Lead Securitization Note Holders and any Non-Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ Representative shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original ~~Non-Lead Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of a representation or warranty made by such Person with respect to the Lead Securitization Note or a material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to the Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) The Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required: (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Lead Securitization Note Holder (or its related Note Holder Representative), within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the expiration of a Control Termination Event or a Consultation Termination Event) and (ii) to consult with the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Lead Securitization Subordinate Class Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult with such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative). In addition to the consultation rights of the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) provided for above, the Non-Controlling Note Holder shall have the right to attend annual meetings (which may be held telephonically or in person, in the discretion of the Master Servicer) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed. (c) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. ~~Anything herein or in~~ In the ~~Lead Securitization Servicing Agreement to the contrary notwithstanding, if~~ event that one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to ~~the~~ any other Note ~~Holders~~ Holder be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to ~~calculating~~ the Securitization of any ~~amount of interest~~ Note (including any New Note), all notices, reports, information or ~~principal due~~ other deliverables required to be delivered to a Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) only need to be delivered to the related Note ~~Holders under Section 3 hereof~~Holder (or its Note Holder Representative) and, when so delivered to such Note Holder (or Note Holder Representative, as applicable), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall ~~reduce the Note B Principal Balance (not below zero) by any Realized Loss~~ be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the ~~Mortgage Loan~~Lead Securitization Servicing Agreement. Following the Securitization of any Note (including any New Note), as applicable, all notices, reports, information or other deliverables required to be delivered to a Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be delivered to the master servicer and ~~after~~ the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss special servicer with respect to such Securitization (who then may forward such items to the ~~Mortgage Loan~~party entitled to receive such items as and to the extent provided in the related Securitization Servicing Agreement) and, when so delivered to such master servicer and the special servicer, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement.

Appears in 6 contracts

Samples: Agreement Between Note Holders (BMO 2024-C10 Mortgage Trust), Agreement Between Note Holders (BBCMS Mortgage Trust 2024-C24), Agreement Between Note Holders (BMO 2023-C7 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and ~~consents~~consent, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the ~~proposed~~ permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the ~~Mortgage Loan~~Mortgaged Property, and any documents in the ~~servicing file~~ Loan File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no not less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan, unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Note Holders as a collective whole (taking into account that Note B is junior to the A Notes). The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as or an Affiliate of the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the same rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement with respect to the other mortgage loans included in the Lead Securitization, including without limitation, the right to consent and/or consult regarding Major Decisions and other servicing matters, the right to advise (1) the Special Servicer with respect to all Specially Serviced Loans and (2) the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, and the right to direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Lead Securitization Subordinate Class Representative may deem advisable or as to which provision is otherwise made therein, in each case subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Controlling Note Holder or its Non-Controlling Note Holder Representative, within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) to consult on a non-binding basis with the Non-Controlling Note Holder or its Non-Controlling Note Holder Representative (until the occurrence and continuance of a consultation termination event under the related pooling and servicing agreement) and consider alternative actions recommended by the Non-Controlling Note Holder Representative with respect to any such Major Decisions (provided that if the Non-Controlling Note Holder does not consult, or notify the Special Servicer that it will not consult, to such Major Decisions within ten (10) business days, as applicable, the Non-Controlling Note Holder shall be deemed to have consulted to such Major Decisions). (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 6 contracts

Samples: Co Lender Agreement (GS Mortgage Securities Trust 2018-Gs9), Co Lender Agreement (GS Mortgage Securities Trust 2018-Gs9), Co Lender Agreement (BENCHMARK 2018-B2 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow ~~the~~ Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced Loan~~defaulted loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on its behalf ~~of the Lead Securitization Note Holder~~) to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall ~~be required to~~ sell ~~each Non-Lead Securitization Note together with~~ the ~~Lead Securitization~~ Notes in the manner set forth in the Lead Securitization Servicing Agreement and shall require that all offers be submitted to the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required ~~from~~ with respect to any Non-Lead Securitization Note ~~Holder~~ that is a held by the Mortgage Loan Borrower ~~Affiliate~~Party) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms~~ foregoing, each of the ~~Lead Securitization Servicing Agreement~~Controlling Note Holder, ~~each~~ the Controlling Note Holder Representative, any Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and any Non-Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original ~~Non-Lead Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization ~~Note~~ Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization ~~is terminated~~ Notes are repurchased from the Lead Securitization Trust by the holders of such Lead Securitization Notes that sold such Lead Securitization Notes into such securitization trust in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Persons with respect to the Lead Securitization Notes or material document defect with respect to the documents delivered by such Persons with respect to the Lead Securitization Notes in connection with the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holders of the Lead Securitization Notes that sold such Lead Securitization Notes into the Lead Securitization Trust or any document delivery obligation imposed on any such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by any such Person in connection with the Lead Securitization. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement and this Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with Accepted Servicing Practices, taking into account the interests of the Note Holders as a collective whole. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and/or the Controlling Class Representative on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is Mortgage Loan Borrower Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) [Reserved]. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide reasonable prior notice to each Non-Lead Securitization Note Holder (or its Note Holder Representative) of the implementation of any Major Decision or any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan and (ii) to use reasonable efforts to consult each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis if such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report provided to investors in the Lead Securitization relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of five (5) Business Days from the delivery to such Non-Controlling Note Holder (or its Non- Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report provided to the Controlling Class Representative (or that would have been provided to the Controlling Class Representative if it had not lost its consent and/or consultation rights with respect to the matter), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such five (5) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such five (5) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned five (5) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by a Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative). In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to an annual meeting (which may be held telephonically) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed. (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that ~~the Notes~~ each Note shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a ~~REMIC~~REMIC and another is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 6 contracts

Samples: Agreement Between Note Holders (BBCMS Mortgage Trust 2019-C4), Agreement Between Note Holders (Morgan Stanley Capital I Trust 2019-H6), Agreement Between Note Holders (Benchmark 2019-B11 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the ~~Master~~ Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the ~~Master~~ Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the ~~Master~~ Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the ~~Master~~ Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a Mortgage Loan Borrower ~~Affiliate~~Related Party) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the ~~proposed~~ permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the ~~Mortgage Loan~~Mortgaged Properties, and any documents in the ~~servicing file~~ Loan File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no not less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan, unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Note Holders as a collective whole (taking into account that the B Notes are junior to the A Notes). The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as or an Affiliate of the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the same rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement with respect to the other mortgage loans included in the Lead Securitization, including without limitation, the right to consent and/or consult regarding Major Decisions and other servicing matters, the right to advise (1) the Special Servicer with respect to all Specially Serviced Loans and (2) the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Servicer must obtain the consent or deemed consent of the Special Servicer, and the right to direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Lead Securitization Subordinate Class Representative may deem advisable or as to which provision is otherwise made therein, in each case subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Servicer or the Special Servicer acting on its behalf) shall be required to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Controlling Note Holder or its Non-Controlling Note Holder Representative, within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement prior to or following the termination of a Controlling Class Control Period or a Controlling Class Consultation Period (each as defined in the Lead Securitization Servicing Agreement)). (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (cf) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction ~~amount~~Amount. Appraisal Reduction ~~amounts~~ Amounts with respect to the Mortgage Loan shall be allocated, first, to the B ~~Note~~Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances), up to its respective outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 6 contracts

Samples: Co Lender Agreement (Morgan Stanley Capital I Trust 2016-Ubs9), Co Lender Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2016-C28), Co Lender Agreement (CSAIL 2016-C5 Commercial Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, ~~such~~ but others are not, other Note ~~Holder~~ Holders whose Notes are not included in a REMIC shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction ~~amount~~Amount. Appraisal Reduction ~~amounts~~ Amounts with respect to the Mortgage Loan shall be allocated, first, to the B ~~Note,~~ Note up to its respective outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note B Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 5 contracts

Samples: Co Lender Agreement (Benchmark 2019-B15 Mortgage Trust), Co Lender Agreement (Benchmark 2019-B14 Mortgage Trust), Co Lender Agreement (Morgan Stanley Capital I Trust 2019-L3)

Appears in 5 contracts

Samples: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-Gc36), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-Gc36), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2015-Gc35)

Appears in 5 contracts

Samples: Co Lender Agreement (Benchmark 2023-V4 Mortgage Trust), Co Lender Agreement (BMO 2023-5c2 Mortgage Trust), Co Lender Agreement (BMO 2023-5c1 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement ~~(including but not limited to Section 5(b))~~ and the Lead Securitization Servicing Agreement~~, and subject to the rights and consents, where required, of the Controlling Note Holder Representative~~, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-~~Lead Securitization~~ Controlling Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Non-Controlling Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-~~Lead Securitization~~ Controlling Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special ~~Servicer~~Servicer acting on behalf of the Lead Securitization Note Holder) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-~~Lead Securitization~~ Controlling Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-~~Lead Securitization~~ Controlling Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each~~ the Non-~~Lead Securitization Note~~ Controlling Notes together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the ~~Lead Securitization Note Holder (or the~~ Special Servicer ~~acting on its behalf) will~~ shall not be permitted to sell the Mortgage Loan if such loan becomes the ~~Mortgage Loan becomes a Specially Serviced~~ Defaulted Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if such Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a Borrower Affiliate) unless the Special Servicer has delivered to ~~each~~ such Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that ~~such~~ the Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder (or ~~its representative~~the related Non-Controlling Note Holder Representative) ~~that is not a Borrower Affiliate~~ shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is a Borrower Affiliate. Each Non-~~Lead Securitization~~ Controlling Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-~~Lead Securitization Notes~~Controlling Note. Each Non-~~Lead Securitization~~ Controlling Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-~~Lead Securitization~~ Controlling Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-~~Lead Securitization Notes~~Controlling Note, and the obligations of ~~the~~ each Non-~~Lead Securitization~~ Controlling Note ~~Holders~~ Holder to execute and deliver instruments or deliver the related Non-~~Lead Securitization~~ Controlling Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Defaulted Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement shall require the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Note Holders as a collective whole and the subordination of the B Note to the A Notes. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Controlling Note Holder in its capacity as Non-Controlling Note Holder without such Non-Controlling Note Holder’s prior written consent. Each Non-Controlling Note Holder (unless it is the same Person as or a Borrower Affiliate) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and another Note is not, such other Note Holder shall not be required to reimburse ~~such~~ any Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 5 contracts

Samples: Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2016-C4), Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2016-Jp4), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2016-Lc25)

Appears in 5 contracts

Samples: Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2016-Jp2), Co Lender Agreement (DBJPM 2016-C1 Mortgage Trust), Co Lender Agreement (DBJPM 2016-C1 Mortgage Trust)

Appears in 5 contracts

Samples: Co Lender Agreement (Benchmark 2022-B32 Mortgage Trust), Co Lender Agreement (Benchmark 2021-B24 Mortgage Trust), Co Lender Agreement (Benchmark 2018-B7 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and ~~consents~~consent, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a Borrower ~~Affiliate~~Related Party) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the ~~proposed~~ permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the ~~Mortgage Loan~~Mortgaged Property, and any documents in the ~~servicing file~~ Mortgage File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no not less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan, unless such Person is a Borrower Related Party. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Accepted Servicing Practices, taking into account the interests of each of the Note Holders as a collective whole. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is a Borrower Related Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to each Non-Controlling Note Holder or its Non-Controlling Note Holder Representative, within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) to consult on a non-binding basis with each Non-Controlling Note Holder or its Non-Controlling Note Holder Representative (until the occurrence and continuance of a consultation termination event under the related pooling and servicing agreement) and consider alternative actions recommended by such Non-Controlling Note Holder Representative with respect to any such Major Decisions (provided that if a Non-Controlling Note Holder does not consult, or notify the Special Servicer that it will not consult, to such Major Decisions within ten (10) business days, as applicable, such Non-Controlling Note Holder shall be deemed to have consulted to such Major Decisions). (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 5 contracts

Samples: Co Lender Agreement (Benchmark 2023-V3 Mortgage Trust), Co Lender Agreement (Benchmark 2023-B39 Mortgage Trust), Co Lender Agreement (Benchmark 2023-V2 Mortgage Trust)

Appears in 4 contracts

Samples: Co Lender Agreement (GS Mortgage Securities Trust 2017-Gs8), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2017-P8), Co Lender Agreement (GS Mortgage Securities Trust 2017-Gs7)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow ~~the~~ Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced Loan~~defaulted loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on its behalf ~~of the Lead Securitization Note Holder~~) to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note together with~~ the ~~Lead Securitization~~ Notes in the manner set forth in the Lead Securitization Servicing Agreement and shall be required to require that all offers be submitted to the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder ~~(provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate)~~ unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms~~ foregoing, each of the ~~Lead Securitization Servicing Agreement~~Controlling Note Holder, ~~each~~ the Controlling Note Holder Representative, any Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and any Non-Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original ~~Non-Lead Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization ~~Note~~ Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization ~~is terminated~~ Note(s) are repurchased from the Lead Securitization Trust by the holder of such Lead Securitization Note(s) that sold such Lead Securitization Note(s) into such securitization trust in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note(s) or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note(s) upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note(s) that sold such Lead Securitization Note(s) into the Lead Securitization Trust or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement and this Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with Accepted Servicing Practices, taking into account the interests of each of the Note Holders as a collective whole and taking into account the subordinate nature of the Junior Notes. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and/or the Controlling Class Representative on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is Mortgage Loan Borrower Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) [Reserved]. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide reasonable prior notice to each Non-Lead Securitization Note Holder (or its Note Holder Representative) of the implementation of any Major Decision or any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan and (ii) to use reasonable efforts to consult each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis if such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report provided to investors in the Lead Securitization relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note Holder (or its Non- Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report provided to the Controlling Class Representative (or that would have been provided to the Controlling Class Representative if it had not lost its consent and/or consultation rights with respect to the matter), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by a Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative). In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to an annual meeting (which may be held telephonically) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed. (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that ~~the Notes~~ each Note shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the ~~Code,~~ Code (for that purpose the loan-to-value test in Section 860G(a)(3) shall be applied by treating the Senior Notes and the Junior Notes as constituting a single debt instrument) (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of of Section ~~1.860G-2(b~~1. 860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a ~~REMIC~~REMIC and another is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 4 contracts

Samples: Agreement Between Note Holders (UBS Commercial Mortgage Trust 2017-C5), Agreement Between Note Holders (Bank 2017-Bnk8), Agreement Between Note Holders (Morgan Stanley Bank of America Merrill Lynch Trust 2017-C34)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, no Non-Lead Securitization Note Holder shall have any right to, and each Non-Lead Securitization Note Holder ~~agrees that it shall have no right to, and~~ hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Loan, to sell the ~~Non-Lead Securitization~~ Notes together ~~with the Lead Securitization Notes~~ as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall sell the Notes together as notes evidencing one whole loan and shall require that all offers be ~~required~~ submitted to ~~sell each Non-Lead Securitization Note together~~ the Trustee in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer (unless the offeror is an Interested Person, in which case the Trustee shall make such determination); provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least one bona fide other offer is received from an independent third party. In determining whether any offer received represents a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization ~~Notes~~ Servicing Agreement within the preceding nine (9)-month period or, in the ~~manner set forth~~ absence of any such Appraisal, on a new Appraisal. The Trustee shall select the appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall instruct the appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required ~~from~~ with respect to any Non-Lead Securitization Note ~~Holder~~ that is a held by the Mortgage Loan Borrower ~~Affiliate~~or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the Lead Securitization Directing Certificateholder) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms of the Lead Securitization Servicing Agreement~~foregoing, each ~~Non-Lead Securitization~~ Note Holder (or its ~~representative) that is not a Borrower Affiliate~~ Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the~~ any related original ~~Non-Lead Securitization Note,~~ documentation evidencing its Note (endorsed in ~~blank,~~ blank if necessary) to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage~~ is a Specially Serviced Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or ~~any portion thereof). Each Note Holder agrees that~~ to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement relating~~ Agreement), by the Special Servicer, in each case pursuant to ~~the administration of the Mortgage Loan. Anything herein or in~~ the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.Servicing

Appears in 4 contracts

Samples: Agreement Between Note Holders (CSAIL 2018-Cx11 Commercial Mortgage Trust), Agreement Between Note Holders (Benchmark 2018-B3 Commercial Mortgage Trust), Agreement Between Note Holders (UBS Commercial Mortgage Trust 2018-C9)

Administration of the Mortgage Loan. (a) Subject to this Agreement ~~(including but not limited to Section 5(b))~~ and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead ~~Securitization~~ Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead ~~Securitization~~ Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Non-Lead Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead ~~Securitization~~ Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special ~~Servicer~~Servicer acting on behalf of the Lead Securitization Note Holder) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead ~~Securitization~~ Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead ~~Securitization~~ Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each~~ the Non-Lead ~~Securitization Note~~ Notes together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the ~~Lead Securitization Note Holder (or the~~ Special Servicer ~~acting on its behalf) will~~ shall not be permitted to sell the Mortgage Loan if the Mortgage ~~Loan~~ Loans becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-Lead ~~Securitization~~ Note Holder (provided that such consent is not required ~~from any~~ if such Non-Lead ~~Securitization~~ Note Holder ~~that~~ is a Borrower Affiliate) unless the Special Servicer has delivered to ~~each~~ such Non-Lead ~~Securitization~~ Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead ~~Securitization~~ Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that ~~such~~ the Non-Lead ~~Securitization~~ Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead ~~Securitization~~ Note Holder (or ~~its representative~~the related Non-Lead Note Holder Representative) ~~that is not a Borrower Affiliate~~ shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is a Borrower Affiliate. Each Non-Lead ~~Securitization~~ Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-Lead ~~Securitization Notes~~Note. Each Non-Lead ~~Securitization~~ Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ the Non-Lead ~~Securitization~~ Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead ~~Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-Lead ~~Securitization Notes~~Note, and the obligations of ~~the~~ each Non-Lead ~~Securitization~~ Note ~~Holders~~ Holder to execute and deliver instruments or deliver the related Non-Lead ~~Securitization~~ Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Defaulted Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement shall require the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Note Holders as a collective whole and the subordination of the B Note to the A Notes. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and/or the Operating Advisor on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Controlling Note Holder in its capacity as Non-Controlling Note Holder without such Non-Controlling Note Holder’s prior written consent. Each Non-Controlling Note Holder (unless it is the same Person as or a Borrower Affiliate) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and another Note is not, such other Note Holder shall not be required to reimburse ~~such~~ any Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 4 contracts

Samples: Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2024-C63), Co Lender Agreement (BBCMS Mortgage Trust 2024-C28), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2024-C63)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, ~~each~~ no Non-Lead Securitization Note Holder ~~agrees that it~~ shall have no any right to, and the Non-Lead Securitization Note Holder hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to ~~any~~ the Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Loan, to sell the ~~Non-Lead Securitization~~ Notes together ~~with the Lead Securitization Notes~~ as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ the Notes together as notes evidencing one whole loan and shall require that all offers be submitted to the Trustee in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer (unless the offeror is an Interested Person, in which case the Trustee shall make such determination); provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization ~~Notes~~ Servicing Agreement within the preceding nine (9)-month period or, in the ~~manner set forth~~ absence of any such Appraisal, on a new Appraisal. The Trustee shall select the appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall instruct the appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters with at least 5 years’ experience in valuing or investing in loans similar to the Mortgage Loan that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan, and that has been retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage Loan ~~if the Mortgage Loan becomes a Specially Serviced Loan~~ without the written consent of ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder ~~(provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate)~~ unless the Special Servicer has delivered to ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least ~~15 business days~~ fifteen (15) Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 ten (10) days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 ten (10) days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicer Mortgage File requested by such Non-~~Lead Securitization~~ Controlling Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the Lead Securitization Directing Holder or the Controlling Holder, as applicable) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms of the Lead Securitization Servicing Agreement~~foregoing, each ~~Non-Lead Securitization~~ Note Holder (or its ~~representative) that is not a Borrower Affiliate~~ Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the~~ any related original ~~Non-Lead Securitization Note,~~ documentation evidencing its Note (endorsed in ~~blank,~~ blank if necessary) to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to the Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage~~ is a Specially Serviced Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or ~~any portion thereof). Each Note Holder agrees that~~ to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement relating~~ Agreement), by the Special Servicer, in each case pursuant to the ~~administration~~ Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each Note Holder. The Note Holders agree to be bound by the terms of the ~~Mortgage Loan~~Lead Securitization Servicing Agreement. ~~Anything herein~~ All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement ~~to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder~~ shall not be ~~required to reimburse such~~ amended in any manner that may adversely affect the Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. The Non-Lead Securitization Note Holder (unless it is, or ~~any other Person for payment of (i~~is an Affiliate of, the Mortgage Loan Borrower) ~~any taxes imposed on such REMIC, (ii) any costs or expenses relating~~ shall be a third-party beneficiary to the ~~administration of such REMIC or~~ Lead Securitization Servicing Agreement with respect to ~~any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances~~ its rights as specifically provided for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficittherein. (c) ~~The Mortgage Loan~~ Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be ~~treated~~ required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Directing Holder or Controlling Holder, as ~~a single loan for purposes~~ applicable, pursuant to (notwithstanding the existence of ~~calculating~~ any “control termination event” (or analogous term) under) the ~~Appraisal Reduction amount. Appraisal Reduction amounts~~ Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage ~~Loan shall be allocated, first~~Loan, to the ~~B Note~~Non-Controlling Note Holder (or its Note Holder Representative), up within the same time frame it is required to ~~its outstanding principal balance, and then~~ provide to the ~~A Notes on a pro rata and pari passu basis~~ Lead Securitization Directing Holder (~~based on their relative outstanding principal balances). (d) Prior~~ for this purpose, without regard to ~~calculating any amount of interest or principal~~ whether such items are actually required to be provided to the Lead Securitization Directing Holder under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) to consult with each Non-Controlling Note ~~Holders under Section 3 hereof~~Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the ~~Servicer shall reduce the~~ extent having received such notices, information and reports, such Non-Controlling Note ~~B Principal Balance~~ Holder (~~not below zero~~or its Non-Controlling Note Holder Representative) ~~by any Realized Loss~~ requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.expiration of

Appears in 4 contracts

Samples: Agreement Between Note Holders (Wells Fargo Commercial Mortgage Trust 2016-Bnk1), Agreement Between Note Holders (Wells Fargo Commercial Mortgage Trust 2016-Bnk1), Agreement Between Note Holders (Citigroup Commercial Mortgage Trust 2016-P4)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b)~~5(f) below) and the ~~Lead Securitization~~ Servicing ~~Agreement,~~ Agreement and ~~subject to~~ consistent with the ~~rights and consents, where required, of the Controlling Note Holder Representative~~Servicing Standard, the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other ~~remedy,~~ remedy and no ~~Non-Lead Securitization Note Holder~~ other Noteholder shall have any voting, consent or other rights whatsoever ~~except as explicitly set forth herein~~ with respect to the Lead Securitization ~~Note Holder~~Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the ~~Lead Securitization~~ Servicing ~~Agreement~~Agreement (including, without limitation, Section 5(f) below) and consistent with the Servicing Standard, each Non-Lead Securitization ~~Note Holder~~ Noteholder and each Subordinate Fixed Rate Noteholder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) the rights, if any, that such ~~Note Holder~~ Non-Lead Securitization Noteholder or Subordinate Fixed Rate Noteholder, as applicable, has to, (i) call or cause the Lead Securitization ~~Note Holder~~ Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization ~~Note Holder~~ Noteholder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall not have any fiduciary duty to any Non-Lead ~~Securitization Note Holder~~ Noteholder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization ~~Note Holder~~ Noteholder from the obligation to make any disbursement of funds as set forth ~~herein or its obligation to follow~~ herein). (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Servicing ~~Standard (~~Agreement. Each Noteholder agrees to be bound by the terms of this Agreement and the Servicing Agreement. The Servicers shall service the Mortgage Loan in accordance with the ~~case~~ terms of this Agreement, including without limitation, the rights of the Subordinate Fixed Rate Noteholders set forth in Section 5(f) below and consistent with the Servicing Standard. Servicing of the Mortgage Loan shall be carried out by the Master Servicer ~~or the Special Servicer) or any liability for failure to do so). Upon~~ and, if the Mortgage Loan ~~becoming~~ is a Specially Serviced Loan, by the Special Servicer, in each ~~Non-~~case pursuant to the Servicing Agreement and consistent with the Servicing Standard. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Lead Securitization Noteholder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Noteholders as a collective whole (it being understood that (w) the interests of the Fixed Rate Noteholders, on the one hand, and the Floating Rate Holder, on the other hand, are pro rata and pari passu, (x) the interests of the Note A-1-B Holder ~~hereby acknowledges~~ are subordinate to the ~~right~~ interests of the Note A-1-A Holders, (y) the interests of the Note A-1-C Holders are subordinate to the interests of the Note A-1-A Holders and ~~obligation~~ the Note A-1-B Holder, and (z) the interests of the Note A-1-D Holder are subordinate to the interests of the Note A-1-A Holders, the Note A-1-B Holder and the Note A-1-C Holders, in the cause of each of (w), (x), (y) and (z) subject to the terms and conditions of this Agreement, including without limitation the rights of the Controlling Noteholder and the Note A-2 Holder), and any Subordinate Fixed Rate Noteholder who is not a Borrower Party shall be deemed a third party beneficiary of such provisions of the Servicing Agreement. The foregoing provisions of this Section 5(b) shall not limit or modify the rights of the Controlling Noteholder, the Controlling Noteholder Representative and/or the Note A-2 Holder to exercise their respective rights specifically set forth under this Agreement. (c) Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement and this Agreement (including, without limitation, Sections 5(f) and 6), if the Servicer in connection with a Workout of the Mortgage Loan modifies the terms thereof in accordance herewith such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Mortgage Loan Rate or scheduled amortization payments on such Mortgage Loan are reduced, (iii) payments of interest or principal on such Mortgage Loan are waived, reduced or deferred or (iv) any other adjustment (other than an increase in the Mortgage Loan Rate or increase in scheduled amortization payments) is made to any of the terms of the Mortgage Loan, all payments to the Note A-1-A Holders, Note A-1-B Holder, Note A-1-C Holders, the Note A-1-D Holder and Note A-2 Holder pursuant to Section 3 and Section 4, as applicable, shall be made as though such Workout did not occur, with the payment terms of Note A-1-A, Note A-1-B, Note A-1-C, Note A-1-D and Note A-2 remaining the same as they are on the date hereof, the full economic effect of all waivers, reductions or deferrals of amounts due on the Mortgage Loan attributable to such Workout shall be borne by the Fixed Rate Noteholders, on the one hand, and the Floating Rate Holder, on the other hand (pro rata based on the Principal Balances of the Fixed Rate Notes and the Floating Rate Note, respectively), and with respect to such amounts allocable to the Fixed Rate Noteholders shall be borne first, by the Note A-1-D Holder, second, by the Note A-1-C Holders (pro rata based on the Principal Balances of their respective Notes), third, by the Note A-1-B Holder, and then, by the Note A-1-A Holders (pro rata based on the Principal Balances of their respective Notes), in that order, in each case up to the amount otherwise due on such Note(s). Subject to the Servicing Agreement and this Agreement (including without limitation Sections 5(f) and (6)), in the case of any modification or amendment described above, the Lead Securitization Noteholder (or the Servicer on its behalf) will have the sole authority and ability to revise the payment provisions set forth in Section 3 and Section 4 above in a manner that reflects (w) the pro rata and pari passu nature between the Fixed Rate Noteholders, on the one hand, and the Floating Rate Holder, on the other hand, (x) the subordination of Note A-1-B to Note A-1-A, (y) the subordination of Note A-1-C to Note A-1-A and Note A-1-B, and (z) the subordination of Note A-1-D to Note A-1-A, Note A-1-B and Note A-1-C, with respect to the loss that is the result of such amendment or modification, including: (i) the ability to increase the Note A-1-A Percentage Interest, to increase or reduce, as applicable, the Note A-1-B Percentage Interest, to increase or reduce, as applicable, the Note A-1-C Percentage Interest and to reduce the Note A-1-D Percentage Interest in a manner that reflects a loss in principal as a result of such amendment or modification and (ii) the ability to change the Note A-1-A Rate, the Note A-1-B Rate, the Note A-1-C Rate and the Note A-1-D Rate, as applicable, in order to reflect a reduction in the Mortgage Loan Rate of the Mortgage Loan but shall not be permitted to change the order of the clauses set forth in Sections 3 and 4 hereof. Notwithstanding the foregoing, if any Workout, modification or amendment of the Mortgage Loan extends the original maturity date of the Mortgage Loan, for purposes of this paragraph, the Balloon Payment will be deemed not to be due on the original maturity date of the Mortgage Loan but will be deemed due on the extended maturity date of the Mortgage Loan. (d) All rights and obligations of the Lead Securitization ~~Note Holder (or~~ Noteholder described hereunder may be exercised by the ~~Special Servicer acting~~ Servicers on behalf of the Lead Securitization ~~Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan~~ Noteholder in accordance with the ~~terms of the Lead Securitization~~ Servicing Agreement and this Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a Specially Serviced Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead ~~Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants~~ Noteholder shall be provided access to ~~the Lead Securitization Note Holder~~ any website that an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver investor would be permitted to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated access in accordance with ~~its terms~~the procedures set forth in the Servicing Agreement. (be) If any Note is included as an asset of a ~~real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “~~REMIC~~”), then~~, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall each qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the ~~Note Holders~~ Noteholders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the ~~interest~~ interests of ~~each Note Holder~~ the Noteholders therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the ~~Note Holders~~ Noteholders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three ~~(3)~~ months after the earliest startup day of ~~the~~ any REMIC which includes ~~the Notes~~ any Note A-1-A or Note A-1-B (or any portion thereof). ~~Each Note Holder agrees~~ The Noteholders agree that the provisions of this ~~paragraph~~ Section 5(e) shall be effected by compliance ~~with any REMIC provisions in~~ by the Lead Securitization Noteholder or its assignees with this Agreement or the Servicing Agreement ~~relating to~~ or any other agreement which governs the administration of the Mortgage ~~Loan~~Loan or the Lead Securitization Noteholder’s interests therein. All costs and expenses of compliance with this Section 5(e), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne by each Noteholder with respect to the REMIC containing the Note owned by such Noteholder. Anything herein or in the ~~Lead Securitization~~ Servicing Agreement to the contrary notwithstanding, ~~if one of~~ in the ~~Notes~~ event that a Note is included in a ~~REMIC~~REMIC and the other Notes are not, ~~such~~ the other ~~Note Holder~~ Noteholders shall not be required to reimburse such Noteholder that deposited its Note ~~Holder~~ in the REMIC or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to ~~the~~ either such other ~~Note Holders~~ Noteholder be reduced to offset or make-up any such payment or deficit. (cf) ~~The~~ (i) Subject to clauses (ii), (iii) and (iv) below, if any consent, modification, amendment or waiver under or other action in respect of the Mortgage Loan (whether or not a Servicing Transfer Event has occurred and is continuing) that would constitute a Major Decision and/or a Note A-2 Special Decision, as applicable, has been requested or proposed or any fact or circumstance has occurred requiring that a Major Decision and/or a Note A-2 Special Decision, as applicable, be made, or if the Master Servicer or Special Servicer otherwise intends to make a Major Decision and/or a Note A-2 Special Decision, as applicable, then the Master Servicer or Special Servicer, as applicable, shall ~~be treated~~ deliver prompt written notice thereof to the Controlling Noteholder and its Controlling Noteholder Representative and/or the Note A-2 Holder, as ~~a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts~~ applicable, if any, at least ten (10) Business Days prior to taking action with respect to ~~the Mortgage Loan shall be allocated~~such Major Decision and/or such Note A-2 Special Decision, ~~first,~~ as applicable (or making a determination not to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss take action with respect to ~~the Mortgage Loan~~such Major Decision and/or such Note A-2 Special Decision, as applicable), and ~~after~~ none of the ~~Note B Principal Balance has been reduced to zero~~Master Servicer, the Special Servicer or any other Person shall ~~reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by~~ implement any ~~Realized Loss~~ decision with respect to such Major Decision and/or such Note A-2 Special Decision, as applicable (or make a determination not to take action with respect to such Major Decision and/or such Note A-2 Special Decision, as applicable) unless and until the ~~Mortgage Loan~~Master Servicer or the Special Servicer, as applicable, has received the written consent of the Controlling Noteholder (or its Controlling Noteholder Representative) and/or the Note A-2 Holder, as applicable.

Appears in 4 contracts

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no the Non-Lead Securitization Note Holder shall have ~~any~~ no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, ~~each~~ the Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to ~~any~~ the Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, ~~each~~ the Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization ~~Notes~~ Note together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each~~ the Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement and shall be required to require that all offers be submitted to the Certificate Administrator or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement; provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received from an Interested Person represents a fair price for the Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the Appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee shall instruct the Appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by ~~such~~ the Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage ~~Loan;~~ Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other ~~offerors~~offerors and the Lead Securitization Subordinate Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by ~~the Servicer or the Special~~ any Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and the Non-Controlling Note Holder Representative shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. ~~Each~~ The Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the~~ Non-Lead Securitization ~~Notes~~Note. ~~Each~~ The Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ the Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the ~~related~~ original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization ~~Notes~~Note, and the obligations of the Non-Lead Securitization Note ~~Holders~~ Holder to execute and ~~deliver~~ delivery instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which Lead Securitization Note is repurchased by the Initial Note A-1 Holder from the trust fund established under the Lead Securitization ~~is terminated~~ Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by Initial Note A-1 Holder with respect to Lead Securitization Note or material document defect with respect to the documents delivered by Initial Note A-1 Holder with respect to Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to the Non-Lead Securitization Note Holder the benefit of any representation or warranty made by Initial Note A-1 Holder or any document delivery obligation imposed on Initial Note A-1 Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by Initial Note A-1 Holder in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage~~ is a Specially Serviced Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or ~~any portion thereof). Each Note Holder agrees that~~ to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement relating~~ Agreement), by the Special Servicer, in each case pursuant to ~~the administration of the Mortgage Loan. Anything herein or in~~ the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.Servicing

Appears in 4 contracts

Samples: Co Lender Agreement (Morgan Stanley Capital I Trust 2015-Ubs8), Co Lender Agreement (CSAIL 2015-C3 Commercial Mortgage Trust), Co Lender Agreement (CSAIL 2015-C3 Commercial Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and ~~consents~~consent, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the ~~proposed~~ permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the ~~Mortgage Loan~~Mortgaged Property, and any documents in the ~~servicing file~~ Mortgage File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no not less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan, unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Accepted Servicing Practices, taking into account the interests of each of the Note Holders as a collective whole (taking into account that Note B is junior to the A Notes). The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as or an Affiliate of the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Controlling Note Holder or its Non-Controlling Note Holder Representative, within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) to consult on a non-binding basis with the Non-Controlling Note Holder or its Non-Controlling Note Holder Representative (until the occurrence and continuance of a consultation termination event under the related pooling and servicing agreement) and consider alternative actions recommended by the Non-Controlling Note Holder Representative with respect to any such Major Decisions (provided that if the Non-Controlling Note Holder does not consult, or notify the Special Servicer that it will not consult, to such Major Decisions within ten (10) business days, as applicable, the Non-Controlling Note Holder shall be deemed to have consulted to such Major Decisions). (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 4 contracts

Samples: Co Lender Agreement (GS Mortgage Securities Trust 2019-Gc40), Co Lender Agreement (Benchmark 2019-B11 Mortgage Trust), Co Lender Agreement (GS Mortgage Securities Trust 2019-Gc39)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no the Non-Lead Securitization Note Holder shall have ~~any~~ no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, ~~each~~ the Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to ~~any~~ the Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, ~~each~~ the Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization ~~Notes~~ Note together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each~~ the Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization ~~Servicing~~ Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder (( provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by ~~such~~ the Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage ~~Loan;~~ Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other ~~offerors~~offerors and the Lead Securitization Subordinate Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by ~~the Servicer or the Special~~ and Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and the Non-Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. ~~Each~~ The Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the~~ Non-Lead Securitization ~~Notes~~Note. ~~Each~~ The Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ the Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the ~~related~~ original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization ~~Notes~~Note, and the obligations of the Non-Lead Securitization Note ~~Holders~~ Holder to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which Lead Securitization Note is repurchased by the Initial Note A-1 Holder from the trust fund established under the Lead Securitization ~~is terminated~~ Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by Initial Note A-1 Holder with respect to Lead Securitization Note or material document defect with respect to the documents delivered by Initial Note A-1 Holder with respect to Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to the Non-Lead Securitization Note Holder the benefit of any representation or warranty made by Initial Note A-1 Holder or any document delivery obligation imposed on Initial Note A-1 Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by Initial Note A-1 Holder in connection with the Lead Securitization. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of both Note Holders as a collective whole. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder. Each Non-Lead Securitization Note Holder (unless it is the same Person as or an Affiliate of the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to their rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the same rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement with respect to the other mortgage loans included in the Lead Securitization, without limitation, the right to consent and/or consult regarding Major Decisions and other servicing matters, the right to advise (1) the Special Servicer with respect to all Specially Serviced Loans and (2) the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, and the right to direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Lead Securitization Subordinate Class Representative may deem advisable or as to which provision is otherwise made therein, in each case subject to the terms and conditions of the Lead Securitization Servicing Agreement (including the Servicing Standard). (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) to consult with the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Lead Securitization Subordinate Class Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult with the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Servicer or Special Servicer, acting on its behalf) may make any Major Decision or take any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative). In addition to the consultation rights of the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) provided in the immediately preceding paragraph, the Non-Controlling Note Holder shall have the right to attend annual meetings (either telephonically or in person, in the discretion of the Servicer) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed. (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.personal

Appears in 4 contracts

Samples: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-Gc37), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-Gc36), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-Gc36)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow ~~the~~ Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced Loan~~defaulted loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on its behalf ~~of the Lead Securitization Note Holder~~) to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall ~~be required to~~ sell ~~each Non-Lead Securitization Note together with~~ all the ~~Lead Securitization~~ Notes in the manner set forth in the Lead Securitization Servicing Agreement and shall be required to require that all offers be submitted to the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder ~~(provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate)~~ unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms~~ foregoing, each of the ~~Lead Securitization Servicing Agreement~~Controlling Note Holder, ~~each~~ the Controlling Note Holder Representative, any Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and any Non-Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original ~~Non-Lead Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization ~~Note~~ Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization ~~is terminated~~ Note(s) are repurchased from the Lead Securitization Trust by the holder of such Lead Securitization Note(s) that sold such Lead Securitization Note(s) into such securitization trust in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note(s) or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note(s) upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note(s) that sold such Lead Securitization Note(s) into the Lead Securitization Trust or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement and this Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with Accepted Servicing Practices, taking into account the interests of the Note Holders as a collective whole and taking into account the subordinate nature of the Junior Notes (and the subordination of the Junior B Note to the Junior A Notes). The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and/or the Controlling Class Representative on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is a Mortgage Loan Borrower Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) [Reserved]. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide reasonable prior notice to each Non-Lead Securitization Note Holder (or its Note Holder Representative) of the implementation of any Major Decision or any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan and (ii) to use reasonable efforts to consult each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis if such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report provided to investors in the Lead Securitization relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report provided to the Controlling Class Representative (or that would have been provided to the Controlling Class Representative if it had not lost its consent and/or consultation rights with respect to the matter), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by a Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative). In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to an annual meeting (which may be held telephonically) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed. (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that ~~the Notes~~ each Note shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the ~~Code,~~ Code (for that purpose the loan-to-value test in Section 860G(a)(3) shall be applied by treating the Senior Notes and the Junior Notes as constituting a single debt instrument) (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the allocable share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a ~~REMIC~~REMIC and another is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 4 contracts

Samples: Agreement Between Note Holders (Bank 2019-Bnk16), Agreement Between Note Holders (Bank 2018-Bnk15), Agreement Between Note Holders (Morgan Stanley Capital I Trust 2018-L1)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~6(c)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead ~~Securitization~~ Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead ~~Securitization~~ Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead ~~Securitization~~ Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead ~~Securitization~~ Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead ~~Securitization~~ Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead ~~Securitization~~ Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead ~~Securitization~~ Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead ~~Securitization~~ Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead ~~Securitization~~ Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead ~~Securitization~~ Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead ~~Securitization~~ Note Holder) shall not have any fiduciary duty to any Non-Lead ~~Securitization~~ Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead ~~Securitization~~ Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead ~~Securitization~~ Note Holder hereby acknowledges the right and obligation of the Lead ~~Securitization~~ Note Holder (or the Special Servicer acting on behalf of the Lead ~~Securitization~~ Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement~~. In connection with any such sale~~, subject to: (1) the ~~Special Servicer shall be required to sell each Non-Lead Securitization Note together with~~ consent rights of the ~~Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization~~ Controlling Note Holder pursuant to Section 6(c) and (~~or the Special Servicer acting on its behalf~~2) ~~will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a Specially Serviced Loan without~~ the written consent of the holder of each other Non-~~Lead~~ Securitization Note Holder ~~(provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate)~~ unless the Special Servicer has delivered to each ~~Non-Lead Securitization~~ such Note Holder: (a) at least 15 fifteen (15) business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 ten (10) days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 ten (10) days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by ~~such Non-Lead Securitization~~ the applicable Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that ~~such Non-Lead Securitization~~ the applicable Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Appraised-Out Holder and each Non-Lead Securitization Note Holder (or ~~its~~ such Note Holder’s representative) that is not a Mortgage Loan Borrower ~~Affiliate~~ Related Party shall be permitted to submit an offer at any sale of the Mortgage Loan. In connection with any such sale, the Special Servicer shall be required to sell the Non-Lead Securitization Notes together with the Lead Securitization Note(s) in the manner set forth in the Lead Securitization Servicing Agreement. Each Non-Lead ~~Securitization~~ Note Holder hereby appoints the Lead ~~Securitization~~ Note Holder as its agent, and grants to the Lead ~~Securitization~~ Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead ~~Securitization~~ Notes. Each Non-Lead ~~Securitization~~ Note Holder further agrees that, upon the request of the Lead ~~Securitization~~ Note Holder, ~~each Non-Lead Securitization Note Holder~~ it shall execute and deliver to or at the direction of Lead ~~Securitization~~ Note Holder such powers of attorney or other instruments as the Lead ~~Securitization~~ Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver originals of each of the ~~related original~~ Non-Lead Securitization ~~Note~~Notes, endorsed in blank, to or at the direction of the Lead ~~Securitization~~ Note Holder in connection with the consummation of any such sale. The authority of the Lead ~~Securitization~~ Note Holder to sell the Non-Lead ~~Securitization Notes,~~ Notes and the obligations of ~~the~~ each Non-Lead ~~Securitization~~ Note ~~Holders~~ Holder to execute and deliver instruments or deliver each of the Non-Lead Securitization Note upon request of the Lead ~~Securitization~~ Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction ~~amount~~Amount. Appraisal Reduction ~~amounts~~ Amounts with respect to the Mortgage Loan shall be allocated, first, to the A-B ~~Note~~Notes, ~~up to its outstanding principal balance~~on a Pro Rata and Pari Passu Basis, and then to the A ~~Notes~~ Notes, on a ~~pro rata~~ Pro Rata and ~~pari passu basis (based on their relative outstanding principal balances)~~Pari Passu Basis. (d) ~~Prior to calculating~~ (i) At any ~~amount of interest or principal due to~~ time that any A-B Note is not included in a Securitization, if the Note ~~Holders under Section 3 hereof~~A-B Holder Representative is determined at any time of determination to no longer be the Controlling Note Holder (the “Appraised-Out Holder”) as a result of the application of an Appraisal Reduction Amount, ~~the Servicer shall reduce~~ any Note A-B Holder, acting through the Note A-B ~~Principal Balance (not below zero) by any Realized Loss~~ Holder Representative, shall have the right, at their sole expense, to require the Special Servicer to order a second Appraisal with respect to the Mortgage Loan~~, and after the Note B Principal Balance has been reduced to zero, the~~ . The Special Servicer shall ~~reduce~~ use its reasonable efforts to cause such second Appraisal to be (A) delivered within thirty (30) days from receipt of the ~~Note A Principal Balance pro rata~~ Appraised-Out Holder’s written request and (~~based~~ B) prepared on ~~their respective outstanding Principal Balances)~~ an “as-is” basis by an MAI appraiser (provided that such MAI appraiser may not be the same MAI appraiser that provided the Appraisal in ~~each case, not below zero) by any Realized Loss with~~ respect of which the Appraised-Out Holder is requesting the Special Servicer to ~~the Mortgage Loan~~obtain an additional Appraisal).

Appears in 4 contracts

Samples: Co Lender Agreement (CSAIL 2018-C14 Commercial Mortgage Trust), Co Lender Agreement (UBS Commercial Mortgage Trust 2018-C12), Co Lender Agreement (CSAIL 2018-Cx12 Commercial Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and ~~consents~~consent, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell all the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a Borrower ~~Affiliate~~Related Party) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the ~~proposed~~ permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the ~~Mortgage Loan~~Mortgaged Property, and any documents in the ~~servicing file~~ Mortgage File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no not less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan, unless such Person is a Borrower Related Party. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the related Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Accepted Servicing Practices, taking into account the interests of each of the Note Holders as a collective whole. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is a Borrower Related Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to each Non-Controlling Note Holder or its Non-Controlling Note Holder Representative, within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) to consult on a non-binding basis with each Non-Controlling Note Holder or its Non-Controlling Note Holder Representative (until the occurrence and continuance of a consultation termination event under the related pooling and servicing agreement) and consider alternative actions recommended by such Non-Controlling Note Holder Representative with respect to any such Major Decisions (provided that if a Non-Controlling Note Holder does not consult, or notify the Special Servicer that it will not consult, to such Major Decisions within ten (10) business days, as applicable, such Non-Controlling Note Holder shall be deemed to have consulted to such Major Decisions). (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. All costs and expenses of compliance with this Section 4(e), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne by each Note Holder with respect to the REMIC containing the Note owned by such Note Holder. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 4 contracts

Samples: Co Lender Agreement (Bank5 2023-5yr3), Co Lender Agreement (Benchmark 2023-V3 Mortgage Trust), Co Lender Agreement (Benchmark 2023-B39 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no the Non-Lead Securitization Note Holder shall have ~~any~~ no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, ~~each~~ the Non-Lead Securitization Note Holder agrees that it shall have no right to, and the Note A-2 Holder hereby presently and irrevocably assigns and conveys to the ~~Lead Securitization~~ Note A-1 Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to ~~any~~ the Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Each Note Holder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Note Holder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Lead Securitization Servicing Agreement (subject at all times to the rights of the Note Holder set forth herein and in the Lead Securitization Servicing Agreement). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, ~~each~~ the Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the ~~Non-Lead Securitization~~ Notes together ~~with the Lead Securitization Notes~~ as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ the Notes together ~~with~~ as notes evidencing one whole loan and shall require that all offers be submitted to the ~~Lead Securitization Notes~~ Trustee in ~~the manner set forth in the Lead Securitization Servicing Agreement~~writing. ~~Notwithstanding the foregoing, the~~ The Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan ~~if the Mortgage Loan becomes a Specially Serviced Loan~~ without the written consent of ~~each~~ the Non-Lead Securitization Note Holder (provided that such consent is not required ~~from any~~ if the Non-Lead Securitization Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ such Non-Lead Securitization Note Holder: (a) at least ~~15 business days~~ fifteen (15) Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 ten (10) days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 ten (10) days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note Holder ~~that are material to the price of the Mortgage Loan;~~ and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the related “Subordinate Class Representative” (or other similar term)) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed ~~sale; provided~~ sale provided, that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the ~~terms~~ foregoing, each of the ~~Lead Securitization Servicing Agreement~~Controlling Note Holder, ~~each~~ the Controlling Note Holder Representative, the Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and any Non-Controlling Note Holder Representative shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original ~~Non-Lead Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of a representation or warranty made by such Person with respect to the Lead Securitization Note or a material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to the Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) The Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required: (i) to provide copies of any notice, information and report that it is required to provide to the Directing Certificateholder pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Lead Securitization Note Holder (or its related Note Holder Representative), within the same time frame it is required to provide to the Directing Certificateholder (for this purpose, without regard to whether such items are actually required to be provided to the Directing Certificateholder under the Lead Securitization Servicing Agreement due to the expiration of a Control Termination Event or a Consultation Termination Event) and (ii) to consult with the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Directing Certificateholder, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult with such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative). In addition to the consultation rights of the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) provided for above, the Non-Controlling Note Holder shall have the right to attend annual meetings (which may be held telephonically or in person, in the discretion of the Master Servicer) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed. (c) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. ~~Anything herein or in~~ In the ~~Lead Securitization Servicing Agreement to the contrary notwithstanding, if~~ event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to ~~the~~ any other Note ~~Holders~~ Holder be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to ~~calculating~~ the Securitization of any ~~amount of interest~~ Note (including any New Note), all notices, reports, information or ~~principal due~~ other deliverables required to be delivered to a Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) only need to be delivered to the related Note ~~Holders under Section 3 hereof~~Holder (or its Note Holder Representative) and, when so delivered to such Note Holder (or Note Holder Representative, as applicable), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall ~~reduce the Note B Principal Balance (not below zero) by any Realized Loss~~ be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the ~~Mortgage Loan~~Lead Securitization Servicing Agreement. Following the Securitization of any Note (including any New Note), as applicable, all notices, reports, information or other deliverables required to be delivered to a Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be delivered to the master servicer and ~~after~~ the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss special servicer with respect to such Securitization (who then may forward such items to the ~~Mortgage Loan~~party entitled to receive such items as and to the extent provided in the related Securitization Servicing Agreement) and, when so delivered to such master servicer and the special servicer, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement.

Appears in 4 contracts

Samples: Agreement Between Note Holders (Wells Fargo Commercial Mortgage Trust 2017-Rc1), Agreement Between Note Holders (Wells Fargo Commercial Mortgage Trust 2016-C37), Agreement Between Note Holders (Wells Fargo Commercial Mortgage Trust 2016-Nxs6)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b)~~5(f) below) and the ~~Lead Securitization~~ Servicing ~~Agreement,~~ Agreement and ~~subject to~~ consistent with the ~~rights and consents, where required, of the Controlling Note Holder Representative~~Servicing Standard, the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other ~~remedy,~~ remedy and no ~~Non-Lead Securitization Note Holder~~ other Noteholder shall have any voting, consent or other rights whatsoever ~~except as explicitly set forth herein~~ with respect to the Lead Securitization ~~Note Holder~~Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the ~~Lead Securitization~~ Servicing ~~Agreement~~Agreement (including, without limitation, Section 5(f) below) and consistent with the Servicing Standard, each Non-Lead ~~Securitization Note Holder~~ Noteholder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) the rights, if any, that such ~~Note Holder~~ Non-Lead Noteholder has to, (i) call or cause the Lead Securitization ~~Note Holder~~ Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization ~~Note Holder~~ Noteholder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall not have any fiduciary duty to any Non-Lead ~~Securitization Note Holder~~ Noteholder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization ~~Note Holder~~ Noteholder from the obligation to make any disbursement of funds as set forth ~~herein or its obligation to follow~~ herein). (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Servicing ~~Standard~~ Agreement. Each Noteholder agrees to be bound by the terms of this Agreement and the Servicing Agreement. The Servicers shall service the Mortgage Loan in accordance with the terms of this Agreement (in including, without limitation, Section 5(f) below) and consistent with the ~~case~~ Servicing Standard. Servicing of the Mortgage Loan shall be carried out by the Master Servicer ~~or the Special Servicer) or any liability for failure to do so). Upon~~ and, if the Mortgage Loan ~~becoming~~ is a Specially Serviced Loan, by the Special Servicer, in each ~~Non-~~case pursuant to the Servicing Agreement and consistent with the Servicing Standard. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Lead Securitization Noteholder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of the Noteholders as a collective whole. The foregoing provisions of this Section 5(b) shall not limit or modify the rights of the Controlling Noteholder and/or the Controlling Noteholder Representative to exercise their respective rights specifically set forth under this Agreement. (c) Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement and this Agreement (including, without limitation, Sections 5(f) and 6), if the Servicer in connection with a Workout of the Mortgage Loan modifies the terms thereof in accordance herewith such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Mortgage Loan Rate or scheduled amortization payments on such Mortgage Loan are reduced, (iii) payments of interest or principal on such Mortgage Loan are waived, reduced or deferred or (iv) any other adjustment (other than an increase in the Mortgage Loan Rate or increase in scheduled amortization payments) is made to any of the terms of the Mortgage Loan, all payments to the Note ~~Holder hereby acknowledges~~ A Holders pursuant to Section 3 shall be made as though such Workout did not occur, with the ~~right~~ payment terms of each A Note remaining the same as they are on the date hereof, the full economic effect of all waivers, reductions or deferrals of amounts due on the Mortgage Loan attributable to such Workout shall be borne by the Note A Holders (pro rata based on the Principal Balances of their respective Notes). (d) All rights and ~~obligation~~ obligations of the Lead Securitization ~~Note Holder (or~~ Noteholder described hereunder may be exercised by the ~~Special Servicer acting~~ Servicers on behalf of the Lead Securitization ~~Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan~~ Noteholder in accordance with the ~~terms of the Lead Securitization~~ Servicing Agreement and this Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a Specially Serviced Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (be) If any Note is included as an asset of a ~~real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “~~REMIC~~”), then~~, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall each qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the ~~Note Holders~~ Noteholders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the ~~interest~~ interests of ~~each Note Holder~~ the Noteholders therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the ~~Note Holders~~ Noteholders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three ~~(3)~~ months after the earliest startup day of ~~the~~ any REMIC which includes ~~the Notes (~~all or a portion of any ~~portion thereof)~~A Note. ~~Each Note Holder agrees~~ The Noteholders agree that the provisions of this ~~paragraph~~ Section 5(e) shall be effected by compliance ~~with any REMIC provisions in~~ by the Lead Securitization Noteholder or its assignees with this Agreement or the Servicing Agreement ~~relating to~~ or any other agreement which governs the administration of the Mortgage ~~Loan~~Loan or the Lead Securitization Noteholder’s interests therein. All costs and expenses of compliance with this Section 5(e), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne (without reimbursement under Section 3) by each Noteholder with respect to the REMIC containing the Note owned by such Noteholder. Anything herein or in the ~~Lead Securitization~~ Servicing Agreement to the contrary notwithstanding, ~~if one of~~ in the ~~Notes~~ event that a Note is included in a ~~REMIC~~REMIC and the other Notes are not, ~~such~~ the other ~~Note Holder~~ Noteholders shall not be required to reimburse such Noteholder that deposited its Note ~~Holder~~ in the REMIC or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to ~~the~~ either such other ~~Note Holders~~ Noteholder be reduced to offset or make-up any such payment or deficit. (cf) ~~The~~ (i) Subject to clauses (ii) or (iii) below, if any consent, modification, amendment or waiver under or other action in respect of the Mortgage Loan (whether or not a Servicing Transfer Event has occurred and is continuing) that would constitute a Major Decision has been requested or proposed or any fact or circumstance has occurred requiring that a Major Decision be made, or if the Master Servicer or Special Servicer otherwise intends to make a Major Decision, then the Master Servicer or Special Servicer, as applicable, shall deliver prompt written notice thereof to the Controlling Noteholder and its Controlling Noteholder Representative, if any, at least ten (10) Business Days prior to taking action with respect to such Major Decision (or making a determination not to take action with respect to such Major Decision), and none of the Master Servicer, the Special Servicer or any other Person shall implement any decision with respect to such Major Decision (or make a determination not to take action with respect to such Major Decision) unless and until the Master Servicer or the Special Servicer, as applicable, has received the written consent of the Controlling Noteholder (or its Controlling Noteholder Representative). (ii) If the Master Servicer or Special Servicer, as applicable, has not received a response from the Controlling Noteholder (or its Controlling Noteholder Representative) with respect to such Major Decision within five (5) Business Days after delivery of the notice of such Major Decision, the Lead Securitization Noteholder (or the Special Servicer acting on its behalf) shall deliver an additional copy of the notice of such Major Decision in all caps bold 14-point font: “THIS IS A SECOND NOTICE. FAILURE TO RESPOND WITHIN FIVE (5) BUSINESS DAYS OF THIS SECOND NOTICE WILL RESULT IN A LOSS OF YOUR RIGHT TO consent with respect to this decision,” and if the Controlling Noteholder fails to respond to the Lead Securitization Noteholder (or the Special Servicer acting on its behalf) with respect to any such proposed action within five (5) Business Days after receipt of such second notice, the Controlling Noteholder shall have no further consent rights with respect to such action (provided, however, that such failure to reply shall not affect the rights of the Controlling Noteholder to consent to any future actions). Notwithstanding the foregoing, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Servicer may take actions with respect to such Mortgaged Property before obtaining the consent of the Controlling Noteholder (or its Controlling Noteholder Representative) (or before consulting with any Non-Controlling Noteholder to the extent such Non-Controlling Noteholder has consultation rights with respect to such action) if the Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions prior to such consent would materially and adversely affect the interest of the Noteholders as a collective whole, and the Servicer has made a reasonable effort to contact the Controlling Noteholder. The foregoing shall not relieve the Lead Securitization Noteholder (or a Servicer acting on its behalf) of its duties to comply with the Servicing Standard. (iii) Notwithstanding the foregoing, the Lead Securitization Noteholder (or any Servicer acting on its behalf) shall not follow any advice, direction, objection or consultation provided by the Controlling Noteholder (or its Controlling Noteholder Representative) that would require or cause the Lead Securitization Noteholder (or any Servicer acting on its behalf) to violate any applicable law, including the REMIC Provisions, be inconsistent with the Servicing Standard, require or cause the Lead Securitization Noteholder (or any Servicer acting on its behalf) to violate provisions of this Agreement or the Servicing Agreement, require or cause the Lead Securitization Noteholder (or any Servicer acting on its behalf) to violate the terms of the Mortgage Loan, or materially expand the scope of the Lead Securitization Noteholder’s (or any Servicer acting on its behalf) responsibilities under this Agreement or the Servicing Agreement. The Special Servicer shall be ~~treated as a single loan for purposes~~ required to provide copies to each Non-Controlling Noteholder of ~~calculating~~ any notice, information and report that is required to be provided to the ~~Appraisal Reduction amount. Appraisal Reduction amounts~~ Controlling Noteholder pursuant to the Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report within the same time frame such notice, information and report is required to be provided to the Controlling Noteholder, and the Special Servicer shall be required to consult with each Non-Controlling Noteholder on a strictly non-binding basis, to the extent having received such notices, information and reports, any Non-Controlling Noteholder requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report, and consider alternative actions recommended by such Non-Controlling Noteholder; provided that after the expiration of a period of ten (10) Business Days from the delivery to any Non-Controlling Noteholder by the Special Servicer of written notice of a proposed action, together with copies of the notice, information and reports, the Special Servicer shall no longer be obligated to consult with such Non-Controlling Noteholder, whether or not such Non-Controlling Noteholder has responded within such ten (10) Business Day period (unless, the Special Servicer proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). After a Securitization of any Note that is not the Lead Securitization Note, references in this paragraph to a Non-Controlling Noteholder as such term relates to such Note shall mean the related Non-Lead Securitization Subordinate Class Representative. In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Noteholder shall have the right to attend annual meetings (which may be held telephonically or in person, at the discretion of the Servicer) with the Lead Securitization Noteholder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan ~~shall be allocated, first, to~~ are discussed. The Noteholders acknowledge that the ~~B Note, up to its outstanding principal balance, and then to~~ Lead Securitization Servicing Agreement may contain certain provisions that give the ~~A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest~~ Operating Advisor or ~~principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss~~ Risk Retention Consultation Party certain non-binding consultation rights with respect to Major Decisions and other events related to compliance with the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect Risk Retention Rules applicable to the ~~Mortgage Loan~~Lead Securitization.

Appears in 4 contracts

Samples: Agreement Between Noteholders (Wells Fargo Commercial Mortgage Trust 2019-C54), Agreement Between Noteholders (Citigroup Commercial Mortgage Trust 2019-Gc41), Agreement Between Noteholders (Benchmark 2019-B12 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow ~~the~~ Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced Loan~~defaulted loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on its behalf ~~of the Lead Securitization Note Holder~~) to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note together with~~ the ~~Lead Securitization~~ Notes in the manner set forth in the Lead Securitization Servicing Agreement and shall be required to require that all offers be submitted to the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder ~~(provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate)~~ unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms~~ foregoing, each of the ~~Lead Securitization Servicing Agreement~~Controlling Note Holder, ~~each~~ the Controlling Note Holder Representative, any Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and any Non-Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original ~~Non-Lead Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization ~~Note~~ Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization ~~is terminated~~ Note(s) are repurchased from the Lead Securitization Trust by the holder of such Lead Securitization Note(s) that sold such Lead Securitization Note(s) into such securitization trust in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note(s) or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note(s) upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note(s) that sold such Lead Securitization Note(s) into the Lead Securitization Trust or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the~~ is a Specially Serviced Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or ~~any portion thereof). Each Note Holder agrees that~~ to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement relating~~ Agreement), by the Special Servicer, in each case pursuant to the ~~administration~~ Lead Securitization Servicing Agreement and this Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with Accepted Servicing Practices, taking into account the interests of the ~~Mortgage Loan~~Note Holders as a collective whole and taking into account the subordinate nature of the Junior Notes. ~~Anything herein or~~ The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and/or the Controlling Class Representative on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement ~~to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder~~ shall not be ~~required to reimburse such~~ amended in any manner that may materially adversely affect any Non-Lead Securitization Note Holder ~~or any other Person for payment of~~ in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (iunless it is Mortgage Loan Borrower Party) ~~any taxes imposed on such REMIC, (ii) any costs or expenses relating~~ shall be a third-party beneficiary to the ~~administration of such REMIC or~~ Lead Securitization Servicing Agreement with respect to ~~any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances~~ its rights as specifically provided for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficittherein. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances)[Reserved]. (d) ~~Prior~~ Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to ~~calculating~~ provide reasonable prior notice to each Non-Lead Securitization Note Holder (or its Note Holder Representative) of the implementation of any ~~amount of interest~~ Major Decision or ~~principal due~~ any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan and (ii) to use reasonable efforts to consult each Non-Controlling Note ~~Holders under Section 3 hereof, the Servicer shall reduce the~~ Holder (or its Non-Controlling Note ~~B Principal Balance~~ Holder Representative) on a strictly non-binding basis if such Non-Controlling Note Holder (~~not below zero~~or its Non-Controlling Note Holder Representative) ~~by any Realized Loss~~ requests consultation with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report provided to investors in the Lead Securitization relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note ~~B Principal Balance has been reduced to zero, the Servicer shall reduce the~~ Holder (or its Non-Controlling Note ~~A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero~~Holder Representative) by ~~any Realized Loss~~ the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report provided to the Controlling Class Representative (or that would have been provided to the Controlling Class Representative if it had not lost its consent and/or consultation rights with respect to the ~~Mortgage Loan.~~matter), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating

Appears in 4 contracts

Samples: Agreement Between Note Holders (Bank 2017-Bnk9), Agreement Between Note Holders (CD 2017-Cd6 Mortgage Trust), Agreement Between Note Holders (Bank 2017-Bnk8)

Administration of the Mortgage Loan. (a) ~~Subject~~ From and after the date hereof and prior to ~~this Agreement (including but not limited to Section 5(b)) and~~ the Lead Securitization Date, the Interim Servicer shall administer and service the Mortgage Loan consistent with the terms of this Agreement, the Interim Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, ~~call or waive any Event~~ Accepted Servicing Practices and applicable law. (b) From and after the Lead Securitization Date, the administration and servicing of ~~Default, accelerate~~ the Mortgage Loan ~~or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder~~ shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to be governed by this Agreement and the Lead Securitization Servicing Agreement; provided that: (i) except as expressly provided for in this Agreement, ~~each Non-Lead Securitization~~ the rights and remedies of the Note B Holder ~~agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to~~ under the Lead Securitization Servicing Agreement shall not be materially impaired compared to the rights and remedies of the Note B Holder set forth herein (or and the ~~Master Servicer,~~ obligations of the ~~Special Servicer or the Trustee acting on behalf of~~ Note B Holder under the Lead Securitization Servicing Agreement shall not be materially increased compared to the obligations of the Note ~~Holder) the rights, if any, that such Note~~ B Holder ~~has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or~~ set forth herein), (ii) ~~exercise any remedies with respect to~~ the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms provisions of the Lead Securitization Servicing ~~Agreement. In connection with~~ Agreement may differ from this Agreement to the extent requested by the Rating Agencies, the subordinate bond buyers or any of the other parties thereto and differences necessary in order that each Initial Note A Holder and its Affiliates obtain accounting “sale” treatment for its respective Note under FAS 140; provided that, in all cases, any such ~~sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in~~ differences between this Agreement and the Lead Securitization Servicing ~~Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting~~ Agreement shall not have a material adverse effect on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a Specially Serviced Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the ~~delivery~~ rights, remedies or ~~timing requirements described in this sentence. Subject~~ protections granted to the ~~terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder~~ Holders under this Agreement (~~or its representative) that is not a Borrower Affiliate shall be permitted~~ without giving effect to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement which states that a term shall have “the meaning assigned to such term in the Servicing Agreement,” or be “subject to the ~~contrary notwithstanding:~~ Servicing Agreement” or similar phrases), -00- Xx-Xxxxxx Xxxxxxxxx (iXxxxxxxxxxx) (xxx) following the ~~Mortgage Loan~~ Lead Securitization Date, such Lead Securitization Servicing Agreement shall not be ~~administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii)~~ modified in any ~~real property (and related personal property) acquired by or on behalf of the Note Holders pursuant~~ manner materially adverse to a ~~foreclosure~~Holder without the prior written consent of such Holder, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8and (iv) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement shall contain terms and conditions as are set forth in Section 40(c) of this Agreement and such additional provisions that are customary for securitization transactions involving assets similar to the Mortgage Loan and that are otherwise (i) required by the Code relating to the ~~administration~~ tax elections of ~~the Mortgage Loan. Anything herein or in the Lead~~ any Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMICTrust, (ii) required by law or changes in any ~~costs~~ law, rule or ~~expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC~~ regulation or (iii) ~~any advances for any~~ generally required by the Rating Agencies in connection with the issuance of ~~the foregoing or any interest thereon or for deficits~~ ratings in ~~other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable~~ securitizations similar to the ~~other Note Holders be reduced to offset or make-up any such payment or deficit~~Lead Securitization. (c) The ~~Mortgage Loan~~ Servicer shall distribute (or cause to be ~~treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect~~ distributed) to the ~~Mortgage Loan shall be allocated, first,~~ Holders all payments due to the ~~B Note~~Holders in accordance with Section 5 and Section 6 hereof; provided, ~~up to its outstanding principal balance~~however, ~~and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior~~ that prior to calculating any amount of interest or principal due on such date to the ~~Note Holders under Section 3 hereof~~Holders, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A A-1 Principal Balance, the Note A-2 Principal Balance and the Note A-3 Principal Balance, pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan. (d) In consideration for servicing the Mortgage Loan (inclusive of each Note) a servicing fee shall accrue at a rate not to exceed the Servicing Fee Rate on the sum of the outstanding Note A Principal Balance and the outstanding Note B Principal Balance (the “Servicing Fee”). The Servicing Fee shall be paid on the same interest accrual basis and for the same period of time for which interest is paid on the Mortgage Loan, and shall be paid in accordance with the priorities set forth in Section 5 and Section 6 and the Lead Securitization Servicing Agreement. (e) In consideration for special servicing the Mortgage Loan (inclusive of each Note) a special servicing fee shall accrue at a rate not to exceed the Special Servicing Fee Rate on the sum of the outstanding Note A Principal Balance and the outstanding Note B Principal Balance (the “Special Servicing Fee”). The Special Servicing Fee shall be payable to the Special Servicer if the Mortgage Loan shall become a Specially Serviced Mortgage Loan, for so long as the Mortgage Loan remains a Specially Serviced Mortgage Loan. Subject to any liquidation set forth in the Lead Securitization Agreement, the Liquidation Fee shall be payable to the Special Servicer upon receipt of Liquidation Proceeds. For any period during which the provisions of Section 6 apply, any Workout Fees or Liquidation Fees shall be paid from funds available for distribution prior to the distribution of funds to the Holders in accordance with Section 6 (it being agreed that a Workout Fee and a Liquidation Fee shall not be payable with respect to the same payment or with respect to the same period of time, or otherwise simultaneously or duplicatively). The Holders acknowledge that pursuant to the Servicing Agreement, the Servicers may be entitled to receive Additional Servicing Compensation. To the extent any such Additional Servicing Compensation is actually received by a Servicer in -28- Co-Lender Agreement (Westchester) accordance with the Servicing Agreement, such Servicer shall be entitled to retain the same. In no event, however, shall any amounts relating to Additional Servicing Compensation that are not otherwise actually received by a Servicer (or its subservicer) be deducted from any distributions to any Holder pursuant to Section 5 or Section 6. (f) Notwithstanding anything to the contrary contained herein, if each of the Lead Securitization Note and Note B cease to be an asset of the trust fund formed pursuant to the Lead Securitization Servicing Agreement, the provisions of this Agreement shall apply in their entirety, and each Holder hereby agrees that the Mortgage Loan shall be serviced pursuant to this Agreement. In such event, all references herein to the “Servicing Agreement” and to “from and after the Lead Securitization Date” and any ancillary provisions relating thereto shall be deemed to be inoperative and of no further force and effect; provided that the actual servicing of the Mortgage Loan under this Agreement shall be performed by a successor Master Servicer appointed by the Lead Note Holder and a successor Special Servicer shall be appointed by the Controlling Holder, both of which replacement Servicers shall be Qualified Servicers and shall be reasonably acceptable to each of the Holders. Any such entity acting as a successor Master Servicer or successor Special Servicer of the Mortgage Loan pursuant to the proviso of the preceding sentence will be required to perform such servicing in accordance with Accepted Servicing Practices and the provisions of this Agreement. (g) Notwithstanding anything to the contrary contained herein, in accordance with this Agreement and the Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement shall provide that the Servicers are required to service and administer the Mortgage Loan in accordance with Accepted Servicing Practices. (h) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the Internal Revenue Code of 1986, as amended (the “Code”) (notice of which shall be given by the related Holder to the other Holders within three (3) Business Days of the “startup day”, within the meaning of Section 860(G)(a)(9) of the Code, of the related REMIC), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that each Note qualifies at all times as (or as interests in) a “qualified mortgage” within the meaning of Sections 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed-in-lieu of foreclosure of the Mortgage or lien on such property following a Default on the Mortgage Loan shall be administered so that the interests of the Holders therein shall at all times qualify as “foreclosure property” within the meaning of Sections 860G(a)(8) of the Code and (iii) the related Holder may not modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the related Holder may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United Stated Department of the Treasury, more than three (3) months after the earliest startup day of any REMIC which includes the related Note (or any portion of such Note). The Holders agree -29- Co-Lender Agreement (Westchester) that the provisions of this Section 4(h) shall be effected by compliance by the related Holder or its assignee with this Agreement or the Servicing Agreement or any other agreement which governs the administration of the Mortgage Loan or such Holder’s interest therein. All costs and expenses of compliance with this Section 4(h), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne by the Holders.

Appears in 4 contracts

Samples: Co Lender Agreement (3650R 2021-Pf1 Commercial Mortgage Trust), Co Lender Agreement (Wells Fargo Commercial Mortgage Trust 2021-C60), Co Lender Agreement (CSAIL 2021-C20 Commercial Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to ~~Section~~ Sections 2(a) and 5(b)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell any Non-Lead Securitization Note together with the Lead Securitization Note in the manner set forth in the Lead Securitization Servicing Agreement. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least ~~15 business days~~ fifteen (15) Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 ten (10) days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 ten (10) days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by such Non-Lead Securitization Note Holder that are material to the sale price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other ~~offerors~~offerors and the Directing Holder) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-~~Lead Securitization~~ Controlling Note Holders and the applicable Non-Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ Representative shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage ~~Loan~~Loan unless such person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, ~~such~~ but others are not, other Note ~~Holder~~ Holders whose Notes are not included in a REMIC shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 4 contracts

Samples: Co Lender Agreement (BBCMS Mortgage Trust 2023-C19), Co Lender Agreement (Bank5 2023-5yr1), Co Lender Agreement (FIVE 2023-V1 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, no Non-Lead Securitization Note Holder shall have any right to, and each Non-Lead Securitization Note Holder ~~agrees that it shall have no right to, and~~ hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Loan, to sell the ~~Non-Lead Securitization~~ Notes together ~~with the Lead Securitization Notes~~ as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall sell the Notes together as notes evidencing one whole loan and shall require that all offers be ~~required~~ submitted to ~~sell each Non-Lead Securitization Note together~~ the Trustee in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer (unless the offeror is an Interested Person, in which case the Trustee shall make such determination); provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least one bona fide other offer is received from an independent third party. In determining whether any offer received represents a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization ~~Notes~~ Servicing Agreement within the preceding nine (9)-month period or, in the ~~manner set forth~~ absence of any such Appraisal, on a new Appraisal. The Trustee shall select the appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall instruct the appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required ~~from~~ with respect to any Non-Lead Securitization Note ~~Holder~~ that is a held by the Mortgage Loan Borrower ~~Affiliate~~or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the Lead Securitization Directing Certificateholder) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms of the Lead Securitization Servicing Agreement~~foregoing, each ~~Non-Lead Securitization~~ Note Holder (or its ~~representative) that is not a Borrower Affiliate~~ Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the~~ any related original ~~Non-Lead Securitization Note,~~ documentation evidencing its Note (endorsed in ~~blank,~~ blank if necessary) to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which a Lead Securitization Note is repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization ~~is terminated~~ Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to such Lead Securitization Note or material document defect with respect to the documents delivered by such Person with respect to such Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage~~ is a Specially Serviced Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or ~~any portion thereof). Each Note Holder agrees that~~ to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement relating~~ Agreement), by the Special Servicer, in each case pursuant to ~~the administration of the Mortgage Loan. Anything herein or in~~ the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.Servicing

Appears in 4 contracts

Samples: Agreement Between Note Holders (Bank 2021-Bnk31), Agreement Between Note Holders (Bank 2021-Bnk31), Agreement Between Note Holders (Bank 2020-Bnk30)

Appears in 4 contracts

Samples: Agreement Between Note Holders (Bank 2024-Bnk47), Agreement Between Note Holders (BMO 2024-C8 Mortgage Trust), Agreement Between Note Holders (MSWF Commercial Mortgage Trust 2023-2)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(d)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have ~~any~~ voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and each Non-Lead Securitization Note Holder hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Mortgage Loan, to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ the Notes together ~~with~~ in such manner as will be reasonably likely to realize a fair price. Subject to the ~~Lead Securitization Notes in~~ other provisions of this paragraph and the ~~manner set forth in~~ two following paragraphs and the applicable provisions of the Lead Securitization Servicing Agreement, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan. The Special Servicer shall notify the Controlling Note Holder Representative and each Non-Controlling Note Holder Representative of any inquiries or offers received regarding the sale of such Defaulted Mortgage Loan. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person (provided that the Trustee may not be an offeror) unless (i) the offer is equal to or greater than the applicable Purchase Price, (ii) the offer is the highest offer received and (iii) at least two other offers are received from independent third parties; provided, however, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two other offers are received from independent third parties. In all cases under this Agreement (except to the extent the Trustee is not required to determine whether any cash offer constitutes a fair price for the Mortgage Loan pursuant to the immediately preceding sentence), in determining whether any offer received from an Interested Person represents a fair price for the Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding 9-month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new Appraisal shall be an Appraiser selected by (i) the Special Servicer if no Interested Person is making an offer with respect to the Mortgage Loan and (ii) the Trustee if an Interested Person is so making an offer. The cost of any such Appraisal shall be covered by, and shall be reimbursable as, a Property Advance. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for the Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement within the prior 9 months), and in determining whether any offer from an Interested Person constitutes a fair price for the Mortgage Loan, any Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for the Mortgage Loan shall in all cases be deemed a fair price; provided, however, that with respect to Interested Parties, the requirements of the first sentence of this paragraph must be satisfied. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Interested Person) designate an independent third party expert in real estate or commercial mortgage loan matters with at least 5 years’ experience in valuing or investing in loans similar to the Mortgage Loan that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan. If the Trustee designates such a third party to make such determination, the Trustee will be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable by the Interested Person; provided that the Trustee will not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required from ~~any~~ a Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ if it is a the Mortgage Loan Borrower ~~Affiliate~~or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ such Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by such ~~Non-Lead Securitization~~ Non- Controlling Note Holder that are material to the price of the Mortgage ~~Loan;~~ Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the Lead Securitization Subordinate Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by ~~the Servicer or the Special~~ any Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-~~Lead Securitization~~ Controlling Note Holders and the Non-Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ Representatives shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-Lead Securitization ~~Notes~~Note. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ such Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of the Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the~~ each Non-Lead Securitization Note ~~Holders~~ Holder to execute and deliver instruments or deliver the related Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the Person that sold such Lead Securitization Note into the Lead Securitization from the Lead Securitization Trust in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the Person that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of~~ Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder ~~therein~~ shall at cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of all ~~times qualify~~ Note Holders as ~~“foreclosure property” within~~ a collective whole. The Note Holders agree to be bound by the ~~meaning of Section 860G(a)(8)~~ terms of the ~~Code~~ Lead Securitization Servicing Agreement. All rights and ~~(iii) no Servicer may modify, waive or amend any provision~~ obligations of the ~~Mortgage Loan~~Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, ~~consent to~~ the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially and adversely affect a Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as or ~~withhold consent from any action~~ an Affiliate of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be ~~effected by compliance with any REMIC provisions in~~ a third-party beneficiary to the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to ~~the Mortgage Loan shall be allocated, first, to the B Note, up to~~ its ~~outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances)~~rights as specifically provided for therein. (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 3 contracts

Samples: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2020-Gc46), Co Lender Agreement (Benchmark 2020-B16 Mortgage Trust), Co Lender Agreement (GS Mortgage Securities Trust 2020-Gc45)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b)~~5(f) below) and the ~~Lead Securitization~~ Servicing Agreement~~, and subject to the rights and consents, where required, of the Controlling Note Holder Representative~~, the Lead Securitization ~~Note Holder~~ Noteholder (or the ~~Master Servicer, the Special~~ Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other ~~remedy~~remedy and, ~~and no Non-Lead Securitization Note Holder~~ except as provided in Section 5(f), the other Noteholders shall not have any voting, consent or other rights whatsoever ~~except as explicitly set forth herein~~ with respect to the Lead Securitization ~~Note Holder~~Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement (including, without limitation, Section 5(f) below) and the ~~Lead Securitization~~ Servicing Agreement, each ~~Non-Lead Securitization Note Holder~~ of the other Noteholders agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization ~~Note Holder~~ Noteholder (or the ~~Master Servicer, the Special~~ Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) the rights, if any, that ~~such Note Holder has~~ the Lead Securitization Noteholder and the other Noteholders have to, (i) call or cause the Lead Securitization ~~Note Holder~~ Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any rights and remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization ~~Note Holder~~ Noteholder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization ~~Note Holder~~ Noteholder (or the ~~Master Servicer, the Special~~ Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall not have any fiduciary duty to ~~any Non-Lead Securitization Note Holder~~ the other Noteholders in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization ~~Note Holder~~ Noteholder from the obligation to make any disbursement of funds as set forth ~~herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so~~herein). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization Note Holder~~ Each Senior Noteholder hereby acknowledges the right and obligation of the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on behalf of the Lead Securitization Noteholder), upon the Mortgage Loan becoming a Defaulted Mortgage Loan and the determination by the Special Servicer to sell the Lead Securitization Note ~~Holder)~~ in accordance with the Servicing Agreement, to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note, as notes evidencing ~~one whole loan~~ the entire senior portion of the Mortgage Loan in accordance with the terms of the ~~Lead Securitization~~ Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ such Notes together as notes evidencing the entire senior portion of the Mortgage Loan and shall require that all offers be submitted to the Certificate Administrator or the Special Servicer, as applicable, in accordance with the ~~Lead Securitization Notes~~ terms of the Servicing Agreement in writing. The Trustee (based upon an updated Appraisal ordered by the Special Servicer and received by the Trustee (or ordered by the Trustee if the Special Servicer or any of its Affiliates is an Interested Person)) shall determine whether any cash offer constitutes a fair price for the Senior Note (in the manner set forth in the ~~Lead Securitization~~ Servicing Agreement) if the highest offeror is an Interested Person, and any such determination by the Trustee shall be binding upon all parties. Notwithstanding the foregoing, the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Noteholder) ~~will~~ shall not be permitted to sell the ~~Mortgage Loan if the Mortgage Loan becomes a Specially Serviced Loan~~ Senior Note without the written consent of each Non-Lead Securitization ~~Note Holder~~ Noteholder (provided that such consent of a Non-Lead Securitization Noteholder is not required ~~from any~~ if the related Non-Lead Securitization Note ~~Holder that~~ is a held by the Mortgage Loan Borrower ~~Affiliate~~or any Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-Lead Securitization ~~Note Holder~~Noteholder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the ~~Mortgage Loan~~Senior Note; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the ~~Mortgage Loan~~Mortgaged Property, and any documents in the ~~servicing file~~ Servicing File reasonably requested by ~~such~~ a Non-Lead Securitization ~~Note Holder~~ Noteholder that are material to the price of the ~~Mortgage Loan;~~ Senior Note and (d) until the sale is ~~completed,~~ completed and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the Subordinate Class Representative (as such term is defined in the Servicing Agreement)) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, however, that ~~such~~ any Non-Lead Securitization ~~Note Holder~~ Noteholder may waive any ~~of the~~ delivery or timing requirements ~~described~~ set forth in this ~~sentence~~sentence only for itself. Subject to the ~~terms~~ foregoing, each of the ~~Lead Securitization Servicing Agreement, each~~ Non-Lead Securitization ~~Note Holder (or its representative) that is not a Borrower Affiliate~~ Noteholders and the Non-Controlling Class Representatives shall be permitted to submit an offer at any sale of the Senior Note unless such Person is the Mortgage ~~Loan~~Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization ~~Note Holder~~ Noteholder hereby appoints the Lead Securitization ~~Note Holder~~ Noteholder as its agent, and grants to the Lead Securitization ~~Note Holder~~ Noteholder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization ~~Note Holder~~ Noteholder further agrees that, upon the request of the Lead Securitization ~~Note Holder~~Noteholder (or the Special Servicer acting on behalf of the Lead Securitization Noteholder), ~~each~~ such Non-Lead Securitization ~~Note Holder~~ Noteholder shall execute and deliver to or at the direction of Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on behalf of the Lead Securitization Noteholder) such powers of attorney or other instruments as the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on behalf of the Lead Securitization Noteholder) may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on behalf of the Lead Securitization Noteholder) in connection with the consummation of any such sale. The authority of the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on behalf of the Lead Securitization Noteholder) to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization ~~Note Holders~~ Noteholders to execute and deliver instruments or deliver the original Non-Lead Securitization ~~Note~~ Notes upon request of the Lead Securitization ~~Note Holder~~Noteholder (or the Special Servicer acting on behalf of the Lead Securitization Noteholder), shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the applicable Noteholder from the related trust fund established under the Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Noteholder with respect to the Lead Securitization Note or a material document defect with respect to the documents delivered by such Noteholder with respect to Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Noteholder the benefit of any representation or warranty made by the Noteholder that holds the Lead Securitization Note as of the date hereof or any document delivery obligation imposed on such Noteholder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Noteholder in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered~~ governed by this Agreement and the Servicing Agreement; provided that to the extent of any conflict between this Agreement and the Servicing Agreement, the terms of this Agreement shall control. The Noteholders agree to be bound by the terms of the Servicing Agreement. The Lead Securitization Noteholder (or the Servicer on its behalf) shall service the Mortgage Loan in accordance with the terms of this Agreement, including without limitation the rights of the Junior Noteholder set forth in Section 5(f) below. After the First Securitization, servicing of the Mortgage Loan shall generally be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Loan, by the Special Servicer, in each case pursuant to the Servicing Agreement and this Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Lead Securitization Noteholder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of the Lead Securitization Noteholder, the Non-Lead Securitization Noteholders and the Junior Noteholder as a collective whole (it being understood that the interest of the Junior Noteholder is a junior Note interest, subject to the terms and conditions of this Agreement), and any Non-Lead Securitization Noteholder or Junior Noteholder who is not a Mortgage Loan Borrower Related Party shall be deemed a third party beneficiary of such provisions of the Servicing Agreement. The foregoing provisions of this Section 5(b) shall not limit or modify the rights of the Controlling Noteholder and/or the Operating Advisor to exercise their respective rights specifically set forth under this Agreement. (c) Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement and this Agreement (including, without limitation, Section 6) if the Servicer (on behalf of the Noteholders) in connection with a Workout of the Mortgage Loan modifies the terms thereof such that (i) the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3)~~ unpaid principal balance of the ~~Code~~Mortgage Loan is decreased, (ii) ~~any real property (and related personal property) acquired by~~ the Interest Rate or ~~on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien~~ scheduled amortization payments on such ~~property following a default~~ Mortgage Loan are reduced, (iii) payments of interest or principal on the Mortgage Loan ~~shall be administered so that~~ are waived, reduced or deferred, or (iv) any other adjustment (other than an increase in the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8~~Interest Rate or increase in scheduled amortization payments) is made to any of the ~~Code and (iii) no Servicer may modify, waive or amend any provision~~ terms of the Mortgage Loan, ~~consent~~ all payments to the Senior Noteholders pursuant to Section 3 and Section 4, as applicable, shall be made as though such Workout did not occur, with the payment terms of the Senior Notes remaining the same as they are on the date hereof, the Junior Note shall bear the full economic effect of all waivers, reductions or ~~withhold consent from any action~~ deferrals of amounts due on the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which~~ attributable to such Workout (up to the ~~Note Holders may have under~~ amount otherwise due on the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereofJunior Note). ~~Each Note Holder agrees that~~ Subject to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization~~ Servicing Agreement ~~relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing~~ and this Agreement ~~to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of~~ (iincluding without limitation Section 5(f) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.Section

Appears in 3 contracts

Samples: Agreement Among Noteholders (Citigroup Commercial Mortgage Trust 2018-C5), Agreement Among Noteholders (JPMDB Commercial Mortgage Securities Trust 2018-C8), Agreement Among Noteholders (UBS Commercial Mortgage Trust 2018-C9)

Appears in 3 contracts

Samples: Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-P5), Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2016-Jp3), Co Lender Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2016-C30)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b)~~5(f) below) and the ~~Lead Securitization~~ Servicing ~~Agreement,~~ Agreement and ~~subject to~~ consistent with the ~~rights and consents, where required, of the Controlling Note Holder Representative~~Servicing Standard, the Lead ~~Securitization Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead ~~Securitization Note Holder~~Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other ~~remedy,~~ remedy and no ~~Non-Lead Securitization Note Holder~~ other Noteholder shall have any voting, consent or other rights whatsoever ~~except as explicitly set forth herein~~ with respect to the Lead ~~Securitization Note Holder~~Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage ~~Loan~~Loan except as set forth in this Agreement and the Servicing Agreement including the rights of the applicable Subordinate Noteholder in its capacity as the Controlling Noteholder to consent to the Major Decisions set forth in this Agreement. Subject to this Agreement and the ~~Lead Securitization~~ Servicing ~~Agreement~~Agreement (including, without limitation, Section 5(f) below) and consistent with the Servicing Standard, each Non-Lead ~~Securitization Note Holder~~ Noteholder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead ~~Securitization Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead ~~Securitization Note Holder~~Noteholder) the rights, if any, that such ~~Note Holder~~ Non-Lead Noteholder has to, (i) call or cause the Lead ~~Securitization Note Holder~~ Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead ~~Securitization Note Holder~~ Noteholder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead ~~Securitization Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead ~~Securitization Note Holder~~Noteholder) shall not have any fiduciary duty to any Non-Lead ~~Securitization Note Holder~~ Noteholder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead ~~Securitization Note Holder~~ Noteholder from the obligation to make any disbursement of funds as set forth ~~herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so~~herein). ~~Upon~~ Subject to Section 11 and Section 12 hereof, upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead ~~Securitization Note Holder~~ Pari Passu Noteholder hereby acknowledges the right and obligation of the Lead ~~Securitization Note Holder~~ Noteholder (or the Special Servicer acting on behalf of the Lead ~~Securitization Note Holder~~Noteholder) to sell ~~the~~ each Non-Lead ~~Securitization Notes~~ Pari Passu Note together with the Lead ~~Securitization Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the ~~Lead Securitization~~ Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead ~~Securitization~~ Pari Passu Note together with the Lead ~~Securitization Notes~~ Note in the manner set forth in the ~~Lead Securitization~~ Servicing Agreement and shall be required to require that all offers be submitted to the Trustee in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offer amount (subject to a cap of $2,500,000). Whether any cash offer constitutes a fair price for such Notes shall be determined by the Trustee; provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for such Notes, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Servicing Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the Appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for such Notes, the Trustee shall instruct the Appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected A Notes, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent Appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Noteholders in connection with making such determination. Notwithstanding the foregoing, the Lead ~~Securitization Note Holder~~ Noteholder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Noteholder) ~~will~~ shall not be permitted to sell the Non-Lead Pari Passu Notes if they become a Defaulted Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead ~~Securitization Note Holder~~ Pari Passu Noteholder (provided that such consent is not required ~~from any~~ if such Non-Lead ~~Securitization Note Holder that~~ Pari Passu Noteholder is a the Mortgage Loan Borrower ~~Affiliate~~or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ such Non-Lead ~~Securitization Note Holder~~Noteholder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the ~~Mortgage Loan~~Non-Lead Pari Passu Notes; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by ~~such~~ the Non-Lead ~~Securitization Note Holder~~ Pari Passu Noteholder that are material to the price of the ~~Mortgage Loan;~~ Non-Lead Pari Passu Notes and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other ~~offerors~~offerors and the Controlling Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the ~~Servicer or the~~ Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-Lead ~~Securitization Note Holder~~ Pari Passu Noteholder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Servicing Agreement, each of the Controlling Noteholder, the Controlling Class Representative, any other Noteholder (or any controlling class representative or directing holder on its behalf under the Non-Lead Securitization Servicing Agreement~~, each Non-Lead Securitization Note Holder (or its representative~~) ~~that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Non-Lead Pari Passu Note unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. In addition, subject to Section 11 and Section 12 hereof, upon the Mortgage Loan becoming a Defaulted Mortgage Loan, the Special Servicer may, in accordance with the terms and provisions of the Servicing Agreement and subject to the Servicing Standard, elect to sell each B Note, subject to the consent rights of the Noteholders thereof, together with the A Notes as notes evidencing one whole loan. Each Non-Lead ~~Securitization Note Holder~~ Noteholder hereby appoints the Lead ~~Securitization Note Holder~~ Noteholder as its agent, and grants to the Lead ~~Securitization Note Holder~~ Noteholder an irrevocable power of attorney coupled with an interest, and ~~its~~ their proxy, for the purpose of soliciting and accepting offers for and consummating the sale ~~of the~~ its Non-Lead ~~Securitization Notes~~Note. Each Non-Lead ~~Securitization Note Holder~~ Noteholder further agrees that, upon the request of the Lead ~~Securitization Note Holder~~Noteholder, ~~each~~ such Non-Lead ~~Securitization Note Holder~~ Noteholder shall execute and deliver to or at the direction of Lead ~~Securitization Note Holder~~ Noteholder such powers of attorney or other instruments as the Lead ~~Securitization Note Holder~~ Noteholder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original Non-Lead ~~Securitization Note,~~ Note endorsed in blank, to or at the direction of the Lead ~~Securitization Note Holder~~ Noteholder in connection with the consummation of any such sale. For the avoidance of doubt, this paragraph is subject to the consent rights of the Subordinate Noteholder in the immediately preceding paragraph. The authority and obligation of the Lead ~~Securitization Note Holder~~ Noteholder to sell ~~the~~ each Non-Lead ~~Securitization Notes~~Note, and the obligations of ~~the~~ each Non-Lead ~~Securitization Note Holders~~ Noteholder to execute and deliver instruments or deliver ~~the~~ its Non-Lead ~~Securitization~~ Note upon request of the Lead ~~Securitization Note Holder~~Noteholder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which Lead Note is repurchased by the seller of such Lead Note from the trust fund established under the Lead Securitization ~~is terminated~~ Agreement in ~~accordance~~ connection with ~~its terms. (b) If any Note is included~~ a material breach of representation or warranty made by such seller as ~~an asset of a real estate~~ mortgage ~~investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered~~ loan seller into such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization ~~Servicing Agreement relating~~ with respect to ~~the administration of the Mortgage Loan. Anything herein~~ Lead Note or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts material document defect with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) documents delivered by ~~any Realized Loss~~ such seller with respect to the ~~Mortgage Loan~~Lead Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Noteholder the benefit of any representation or warranty made by such seller or any document delivery obligation imposed on such seller under any mortgage loan purchase and sale agreement, ~~and after~~ instrument of transfer or other document or instrument that may be executed or delivered by such seller in connection with the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage LoanLead Securitization.

Appears in 3 contracts

Samples: Agreement Between Noteholders (Benchmark 2021-B27 Mortgage Trust), Agreement Between Noteholders (Benchmark 2021-B26 Mortgage Trust), Agreement Between Noteholders (Bank 2021-Bnk33)

Appears in 3 contracts

Samples: Co Lender Agreement (Bank 2022-Bnk44), Co Lender Agreement (Benchmark 2022-B37 Mortgage Trust), Co Lender Agreement (Benchmark 2022-B35 Mortgage Trust)

Appears in 3 contracts

Samples: Agreement Between Noteholders (GS Mortgage Securities Trust 2019-Gc40), Agreement Between Noteholders (Benchmark 2019-B11 Mortgage Trust), Agreement Between Noteholders (Bank 2019-Bnk18)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, ~~each~~ no Non-Lead Securitization Note Holder ~~agrees that it~~ shall have no any right to, and each of the Note A-2 Holder, the Note A-3 Holder and Note A-4 Holder hereby presently and irrevocably assigns and conveys to the ~~Lead Securitization~~ Note A-1 Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has from and after the Note A-1 Securitization Date and prior to the Note A-2 Securitization Date to, and each of the Note A-1 Holder, the Note A-3 Holder and the Note A-4 Holder hereby presently and irrevocably assigns and conveys to the Note A-2 Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has from and after the Note A-2 Securitization Date to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Loan, to sell the ~~Non-Lead Securitization~~ Notes together ~~with the Lead Securitization Notes~~ as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall sell the Notes together as notes evidencing one whole loan and shall require that all offers be ~~required~~ submitted to ~~sell each Non-Lead Securitization Note together~~ the Trustee in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer (unless the offeror is an Interested Person, in which case the Trustee shall make such determination); provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least one bona fide other offer is received from an independent third party. In determining whether any offer received represents a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization ~~Notes~~ Servicing Agreement within the preceding nine (9)-month period or, in the ~~manner set forth~~ absence of any such Appraisal, on a new Appraisal. The Trustee shall select the appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall instruct the appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder ~~(provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate)~~ unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the Lead Securitization Directing Certificateholder) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms of the Lead Securitization Servicing Agreement~~foregoing, each ~~Non-Lead Securitization~~ Note Holder (or its ~~representative) that is not a Borrower Affiliate~~ Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the~~ any related original ~~Non-Lead Securitization Note,~~ documentation evidencing its Note (endorsed in ~~blank,~~ blank if necessary) to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage~~ is a Specially Serviced Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or ~~any portion thereof). Each Note Holder agrees that~~ to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement relating~~ Agreement), by the Special Servicer, in each case pursuant to the ~~administration~~ Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each Note Holder. The Note Holders agree to be bound by the terms of the ~~Mortgage Loan~~Lead Securitization Servicing Agreement. ~~Anything herein~~ All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement ~~to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder~~ shall not be ~~required to reimburse such~~ amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is, or ~~any other Person for payment of (i~~is an Affiliate of, the Mortgage Loan Borrower) ~~any taxes imposed on such REMIC, (ii) any costs or expenses relating~~ shall be a third-party beneficiary to the ~~administration of such REMIC or~~ Lead Securitization Servicing Agreement with respect to ~~any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances~~ its rights as specifically provided for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficittherein. (c) ~~The Mortgage Loan~~ Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall ~~be treated as a single loan for purposes~~ (i) provide copies of ~~calculating~~ any notice, information and report that it is required to provide to the ~~Appraisal Reduction amount. Appraisal Reduction amounts~~ Lead Securitization Directing Certificateholder pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage ~~Loan shall~~ Loan, to each Non-Lead Securitization Note Holder (or its Note Holder Representative), within the same time frame it is required to provide to the Lead Securitization Directing Certificateholder (for this purpose, without regard to whether such items are actually required to be ~~allocated, first~~provided to the Lead Securitization Directing Certificateholder under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) use reasonable efforts to consult each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the ~~B Note~~extent having received such notices, ~~up to~~ information and reports, such Non-Controlling Note Holder (or its ~~outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d~~Non-Controlling Note Holder Representative) ~~Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss~~ requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note ~~B Principal Balance has been reduced~~ Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report required to ~~zero~~be provided to the Lead Securitization Directing Certificateholder, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall ~~reduce~~ no longer be obligated to consult such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note ~~A Principal Balance pro rata~~ Holder (~~based~~ or the Master Servicer or the Special Servicer acting on ~~their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.~~its

Appears in 3 contracts

Samples: Agreement Between Note Holders (Wells Fargo Commercial Mortgage Trust 2017-C38), Agreement Between Note Holders (Bank 2017-Bnk5), Agreement Between Note Holders (Morgan Stanley Capital I Trust 2017-H1)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b)~~5(f) below) and the ~~Lead Securitization~~ Servicing ~~Agreement,~~ Agreement and ~~subject to~~ consistent with the ~~rights and consents, where required, of the Controlling Note Holder Representative~~Servicing Standard, the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other ~~remedy,~~ remedy and no ~~Non-Lead Securitization Note Holder~~ other Noteholder shall have any voting, consent or other rights whatsoever ~~except as explicitly set forth herein~~ with respect to the Lead Securitization ~~Note Holder~~Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the ~~Lead Securitization~~ Servicing ~~Agreement~~Agreement (including, without limitation, Section 5(f) below) and consistent with the Servicing Standard, each Non-Lead ~~Securitization Note Holder~~ Noteholder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) the rights, if any, that such ~~Note Holder~~ Non-Lead Noteholder has ~~to,~~ to (i) call or cause the Lead Securitization ~~Note Holder~~ Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization ~~Note Holder~~ Noteholder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall not have any fiduciary duty to any Non-Lead ~~Securitization Note Holder~~ Noteholder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization ~~Note Holder~~ Noteholder from the obligation to make any disbursement of funds as set forth herein). Without limiting the foregoing, each Note A Holder acknowledges that neither Note B Holder owes such Noteholder any fiduciary duty with respect to any action taken under the Mortgage Loan Documents and, except as provided herein or ~~its obligation to follow~~ in the Servicing ~~Standard~~ Agreement, need not consult with such Note A Holder with respect to any action taken by either Note B Holder in connection with the Mortgage Loan. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Servicing Agreement. Each Noteholder agrees to be bound by the terms of this Agreement and the Servicing Agreement. The Servicers shall service the Mortgage Loan in accordance with the ~~case~~ terms of this Agreement, including without limitation, the rights of the Subordinate Noteholders set forth in Section 5(f) below and consistent with the Servicing Standard. Servicing of the Mortgage Loan shall be carried out by the Master Servicer ~~or the Special Servicer) or any liability for failure to do so). Upon~~ and, if the Mortgage Loan ~~becoming~~ is a Specially Serviced Loan, by the Special Servicer, in each ~~Non-~~case pursuant to the Servicing Agreement and consistent with the Servicing Standard. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Lead Securitization Noteholder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Noteholders as a collective whole (it being understood that the interest of the Note B Holder ~~hereby acknowledges~~ is subordinate to Note A-1, Note A-2, Note A-3, Note A-4, Note A-5, Note A-6, Note A-7, Note A-8, Note A-9, Note A-10, Note A-11, Note A-12, Note A-13, Note A-14, Note A-15, Note A-16, Note A-17, Note A-18, Note A-19, Note A-20 and Note A-21, in each case subject to the ~~right~~ terms and conditions of this Agreement, including without limitation the rights of the Controlling Noteholder), and any Subordinate Noteholder who is not a Borrower Party shall be deemed a third -party beneficiary of such provisions of the Servicing Agreement. The foregoing provisions of this Section 5(b) shall not limit or modify the rights of the Controlling Noteholder and/or the Controlling Noteholder Representative to exercise their respective rights specifically set forth under this Agreement. (c) Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement, the obligation to act in accordance with the Servicing Standard and this Agreement (including, without limitation, Sections 5(f) and 6), if the Servicer in connection with a Workout of the Mortgage Loan modifies the terms thereof in accordance herewith such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Mortgage Loan Rate or scheduled amortization payments on such Mortgage Loan are reduced, (iii) payments of interest or principal on such Mortgage Loan are waived, reduced or deferred or (iv) any other adjustment (other than an increase in the Mortgage Loan Rate or increase in scheduled amortization payments) is made to any of the terms of the Mortgage Loan, such modification shall not alter, and any modification of the Mortgage Loan Documents shall be structured to preserve, the sequential order of payment of the Notes, and all payments to the Note A Holders and the Note B Holder pursuant to Section 3 and Section 4, as applicable, shall be made as though such Workout did not occur, with the payment terms of Note A-1, Note A-2, Note A-3, Note A-4, Note A-5, Note A-6, Note A-7, Note A-8, Note A-9, Note A-10, Note A-11, Note A-12, Note A-13, Note A-14, Note A-15, Note A-16, Note A-17, Note A-18, Note A-19, Note A-20 and Note A-21 remaining the same as they are on the date hereof, the full economic effect of all waivers, reductions or deferrals of amounts due on the Mortgage Loan attributable to such Workout shall be borne, first, by the Note B Holder, and then, by the Note A Holders (pro rata based on the Principal Balances of their respective Notes), in that order, in each case up to the amount otherwise due on such Note(s). Subject to the Servicing Agreement and this Agreement (including without limitation Sections 5(f) and (6)), in the case of any modification or amendment described above, the Lead Securitization Noteholder (or the Servicer on its behalf) will have the sole authority and ability to revise the payment provisions set forth in Section 3 and Section 4 above in a manner that reflects the subordination of Note B to Note A-1, Note A-2, Note A-3, Note A-4, Note A-5, Note A-6, Note A-7, Note A-8, Note A-9, Note A-10, Note A-11, Note A-12, Note A-13, Note A-14, Note A-15, Note A-16, Note A-17, Note A-18, Note A-19, Note A-20 and Note A-21, with respect to the loss that is the result of such amendment or modification, including: (i) the ability to increase the Note A Percentage Interest, and to increase or reduce, as applicable, the Note B Percentage Interest in a manner that reflects a loss in principal as a result of such amendment or modification and (ii) the ability to change the Note A Rate and the Note B Rate, as applicable, in order to reflect a reduction in the Mortgage Loan Rate of the Mortgage Loan but shall not be permitted to change the order of the clauses set forth in Sections 3 and 4 hereof. Notwithstanding the foregoing, if any Workout, modification or amendment of the Mortgage Loan extends the original maturity date of the Mortgage Loan, for purposes of this paragraph, the Balloon Payment will be deemed not to be due on the original maturity date of the Mortgage Loan but will be deemed due on the extended maturity date of the Mortgage Loan. (d) All rights and obligations of the Lead Securitization ~~Note Holder (or~~ Noteholder described hereunder may be exercised by the ~~Special Servicer acting~~ Servicers on behalf of the Lead Securitization ~~Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan~~ Noteholder in accordance with the ~~terms of the Lead Securitization~~ Servicing Agreement and this Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a Specially Serviced Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (be) If any Note is included as an asset of a ~~real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “~~REMIC~~”), then~~, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall each qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the ~~Note Holders~~ Noteholders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the ~~interest~~ interests of ~~each Note Holder~~ the Noteholders therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the ~~Note Holders~~ Noteholders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three ~~(3)~~ months after the earliest startup day of ~~the~~ any REMIC which includes ~~the Notes~~ Note A-1, Note A-2, Note A-3, Note A-4, Note A-5, Note A-6, Note A-7, Note A-8, Note A-9, Note A-10, Note A-11, Note A-12, Note A-13, Note A-14, Note A-15, Note A-16, Note A-17, Note A-18, Note A-19, Note A-20 or Note A-21 (or any portion thereof). ~~Each Note Holder agrees~~ The Noteholders agree that the provisions of this ~~paragraph~~ Section 5(e) shall be effected by compliance ~~with any REMIC provisions in~~ by the Lead Securitization Noteholder or its assignees with this Agreement or the Servicing Agreement ~~relating to~~ or any other agreement which governs the administration of the Mortgage ~~Loan~~Loan or the Lead Securitization Noteholder’s interests therein. All costs and expenses of compliance with this Section 5(e), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne by each Noteholder with respect to the REMIC containing the Note owned by such Noteholder. Anything herein or in the ~~Lead Securitization~~ Servicing Agreement to the contrary notwithstanding, ~~if one of~~ in the ~~Notes~~ event that a Note is included in a ~~REMIC~~REMIC and the other Notes are not, ~~such~~ the other ~~Note Holder~~ Noteholders shall not be required to reimburse such Noteholder that deposited its Note ~~Holder~~ in the REMIC or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to ~~the~~ either such other ~~Note Holders~~ Noteholder be reduced to offset or make-up any such payment or deficit. (cf) ~~The~~ (i) Subject to clauses (iii) or (iv) below, if any consent, modification, amendment or waiver under or other action in respect of the Mortgage Loan (whether or not a Servicing Transfer Event has occurred and is continuing) that would constitute a Major Decision has been requested or proposed or any fact or circumstance has occurred requiring that a Major Decision be made, or if the Master Servicer or Special Servicer otherwise intends to make a Major Decision, then the Master Servicer or Special Servicer, as applicable, shall ~~be treated as~~ deliver prompt written notice thereof and a ~~single loan for purposes of calculating~~ Major Decision Reporting Package to the ~~Appraisal Reduction amount. Appraisal Reduction amounts~~ Controlling Noteholder and its Controlling Noteholder Representative, if any, at least ten (10) Business Days (30 days with respect to any proposed modification or waiver of any material provision in the related Mortgage Loan Documents governing the type, nature or amount of insurance coverage required to be obtained and maintained by the Mortgage Loan ~~shall be allocated, first,~~ Borrower) prior to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss taking action with respect to ~~the Mortgage Loan, and after the Note B Principal Balance has been reduced~~ such Major Decision (or making a determination not to ~~zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss~~ take action with respect to such Major Decision), and none of the ~~Mortgage Loan~~Master Servicer, the Special Servicer or any other Person shall implement any decision with respect to such Major Decision (or make a determination not to take action with respect to such Major Decision) unless and until the Master Servicer or the Special Servicer, as applicable, has received the written consent of the Controlling Noteholder (or its Controlling Noteholder Representative).

Appears in 3 contracts

Samples: Agreement Between Noteholders (Bank5 2024-5yr10), Agreement Between Noteholders (Benchmark 2024-V10 Mortgage Trust), Agreement Between Noteholders (Bank5 2024-5yr9)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(d)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and each Non-Lead Securitization Note Holder hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Mortgage Loan, to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ the Notes together ~~with~~ in such manner as will be reasonably likely to realize a fair price. Subject to the ~~Lead Securitization Notes in~~ other provisions of this paragraph and the ~~manner set forth in~~ two following paragraphs and the applicable provisions of the Lead Securitization Servicing Agreement, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan. The Special Servicer shall notify the Controlling Note Holder Representative and each Non-Controlling Note Holder Representative of any inquiries or offers received regarding the sale of such Defaulted Mortgage Loan. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person (provided that the Trustee may not be an offeror) unless (i) the offer is equal to or greater than the applicable Purchase Price, (ii) the offer is the highest offer received and (iii) at least two other offers are received from independent third parties; provided, however, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two other offers are received from independent third parties. In all cases under this Agreement (except to the extent the Trustee is not required to determine whether any cash offer constitutes a fair price for the Mortgage Loan pursuant to the immediately preceding sentence), in determining whether any offer received from an Interested Person represents a fair price for the Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding 9-month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new Appraisal shall be an Appraiser selected by (i) the Special Servicer if no Interested Person is making an offer with respect to the Mortgage Loan and (ii) the Trustee if an Interested Person is so making an offer. The cost of any such Appraisal shall be covered by, and shall be reimbursable as, a Property Advance. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for the Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement within the prior 9 months), and in determining whether any offer from an Interested Person constitutes a fair price for the Mortgage Loan, any Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for the Mortgage Loan shall in all cases be deemed a fair price; provided, however, that with respect to Interested Parties, the requirements of the first sentence of this paragraph must be satisfied. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Interested Person) designate an independent third party expert in real estate or commercial mortgage loan matters with at least 5 years’ experience in valuing or investing in loans similar to the Mortgage Loan that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan. If the Trustee designates such a third party to make such determination, the Trustee will be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable by the Interested Person; provided that the Trustee will not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if such Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by any such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage ~~Loan;~~ Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the Lead Securitization Subordinate Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by ~~the Servicer or the Special~~ any Servicer in connection with the proposed sale; ~~provided~~ provided, that ~~such~~ any Non-~~Lead Securitization~~ Controlling Note Holder may ~~waive~~ waive, as to itself, any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and each Non-Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-Lead Securitization ~~Notes~~Note. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ such Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of the Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the related Non-Lead Securitization ~~Note~~ Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the Initial Note-A-1 Holder from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by the Initial Note A-1 Holder with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by the Initial Note A-1 Holder with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the Initial Note A-1 Holder or any document delivery obligation imposed on the Initial Note A-1 Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by the Initial Note A-1 Holder in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and, following the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within~~ Securitization Date, together with the ~~meaning~~ Lead Securitization Servicing Agreement. After the Securitization Date, the servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the~~ is a Specially Serviced Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or ~~any portion thereof). Each Note Holder agrees that~~ to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement relating~~ Agreement), by the Special Servicer, in each case pursuant to ~~the administration of the Mortgage Loan. Anything herein or in~~ the Lead Securitization Servicing ~~Agreement~~ Agreement. Notwithstanding anything to the contrary ~~notwithstanding~~contained herein, ~~if one of~~ in accordance with the ~~Notes is included in a REMIC~~Lead Securitization Servicing Agreement, ~~such other~~ the Lead Securitization Note Holder shall ~~not be required~~ cause the Master Servicer and the Special Servicer to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to service and administer the Mortgage Loan ~~shall be allocated~~in accordance with the Servicing Standard, ~~first, to~~ taking into account the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount interests of ~~interest or principal due to the~~ both Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.as a collective

Appears in 3 contracts

Samples: Co Lender Agreement (Benchmark 2018-B5 Mortgage Trust), Co Lender Agreement (Benchmark 2018-B4 Mortgage Trust), Co Lender Agreement (Morgan Stanley Capital I Trust 2018-H3)

Administration of the Mortgage Loan. (a) Subject to this Agreement ~~(including but not limited to Section 5(b))~~ and the Lead Securitization Servicing Agreement~~, and subject to the rights and consents, where required, of the Controlling Note Holder Representative~~, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-~~Lead Securitization~~ Controlling Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Non-Controlling Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-~~Lead Securitization~~ Controlling Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special ~~Servicer~~Servicer acting on behalf of the Lead Securitization Note Holder) or any liability for failure to do so). Upon the Mortgage Loan becoming a Specially Serviced Mortgage Loan, each Non-~~Lead Securitization~~ Controlling Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-~~Lead Securitization~~ Controlling Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each~~ the Non-~~Lead Securitization Note~~ Controlling Notes together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the ~~Lead Securitization Note Holder (or the~~ Special Servicer ~~acting on its behalf) will~~ shall not be permitted to sell the Mortgage Loan if such loan becomes the ~~Mortgage Loan becomes a Specially Serviced~~ Defaulted Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if such Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ such Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; provided that ~~such~~ the Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder (or ~~its representative~~the related Non-Controlling Note Holder Representative) ~~that is not a Borrower Affiliate~~ shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an affiliate of the Mortgage Loan Borrower. Each Non-~~Lead Securitization~~ Controlling Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-~~Lead Securitization Notes~~Controlling Note. Each Non-~~Lead Securitization~~ Controlling Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-~~Lead Securitization~~ Controlling Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-~~Lead Securitization Notes~~Controlling Note, and the obligations of ~~the~~ each Non-~~Lead Securitization~~ Controlling Note ~~Holders~~ Holder to execute and deliver instruments or deliver the related Non-~~Lead Securitization~~ Controlling Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Defaulted Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Servicing Agreement shall require the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Note Holders and the subordination of Note B to the A Notes. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Controlling Note Holder in its capacity as Non-Controlling Note Holder without such Non-Controlling Note Holder’s prior written consent. Each Non-Controlling Note Holder (unless it is the same Person as or an affiliate of the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) For so long as the Lead Securitization has not been terminated, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Controlling Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to each Non-Controlling Note Holder (or its related Non-Controlling Note Holder Representative), within the same time frame it is required to provide to the Controlling Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Controlling Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Subordinate Consultation Period or a Subordinate Consultation Termination Period) and (ii) to consult with each Non-Controlling Note Holder (or its related Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, such related Non-Controlling Note Holder (or its related Non-Controlling Note Holder Representative) requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by the related Non-Controlling Note Holder (or its related Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to a Non-Controlling Note Holder (or its related Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Non-Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) shall no longer be obligated to consult with such Non-Controlling Note Holder (or its related Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its related Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of any Non-Controlling Note Holder (or its related Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) may make any Major Decision or take any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Special Servicer) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by any Non-Controlling Note Holder (or its related Non-Controlling Note Holder Representative). In addition to the consultation rights of a Non-Controlling Note Holder (or its related Non-Controlling Note Holder Representative) provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to attend annual meetings (either telephonically or in person, in the discretion of the Servicer) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed; provided that each Non-Controlling Note Holder, at the request of the Master Servicer or the Special Servicer, as applicable, shall execute a confidentiality agreement in form and substance satisfactory to it, the Master Servicer or the Special Servicer, as applicable, and the Lead Securitization Note Holder. (d) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and another Note is not, such other Note Holder shall not be required to reimburse ~~such~~ any Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 3 contracts

Samples: Co Lender Agreement (Morgan Stanley Capital I Trust 2016-Bnk2), Co Lender Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2016-C31), Co Lender Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2016-C30)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and ~~consents~~consent, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a Borrower ~~Affiliate~~Related Party) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the ~~proposed~~ permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the ~~Mortgage Loan~~Mortgaged Property, and any documents in the ~~servicing file~~ Mortgage File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no not less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan, unless such Person is a Borrower Related Party. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the related Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Accepted Servicing Practices, taking into account the interests of each of the Note Holders as a collective whole (taking into account that the B Notes are junior to the A Notes). The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is a Borrower Related Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall (i) provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to each Non-Controlling Note Holder or its Non-Controlling Note Holder Representative, within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) consult on a non-binding basis with each Non-Controlling Note Holder or its Non-Controlling Note Holder Representative (until the occurrence and continuance of a consultation termination event under the related pooling and servicing agreement) and consider alternative actions recommended by such Non-Controlling Note Holder Representative with respect to any such Major Decisions (provided that if a Non-Controlling Note Holder does not consult, or notify the Special Servicer that it will not consult, to such Major Decisions within ten (10) business days, as applicable, such Non-Controlling Note Holder shall be deemed to have consulted to such Major Decisions). (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. All costs and expenses of compliance with this Section 4(e), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne by each Note Holder with respect to the REMIC containing the Note owned by such Note Holder. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 3 contracts

Samples: Co Lender Agreement (BMO 2024-5c8 Mortgage Trust), Co Lender Agreement (Bank5 2024-5yr11), Co Lender Agreement (Benchmark 2024-V11 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead ~~Securitization~~ Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no the Non-Lead Securitization Note ~~Holder~~ Holders shall have ~~any~~ no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead ~~Securitization~~ Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ the Non-~~Lead Securitization~~ Controlling Note ~~Holder~~Holders: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by ~~such~~ the Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage ~~Loan;~~ Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other ~~offerors~~offerors and the Lead Securitization Subordinate Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer ~~or the Special Servicer~~ in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead ~~Securitization~~ Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and the Non-Controlling Note Holder Representative shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ such Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of the Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the ~~related~~ original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ a Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the Note Holder that sold the Lead Securitization Note into the Lead Securitization from the trust fund established under the Lead Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Note Holder with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by such Note Holder with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the Note Holder that sold the Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Note Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Note Holder in connection with the Lead Securitization. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Servicing Agreement. To the extent that any provision in this Agreement conflicts with any provision in the Lead Servicing Agreement, the provisions in this Agreement shall control. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of both Note Holders as a collective whole. The Note Holders agree to be bound by the terms of the Lead Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder. Each Non-Lead Securitization Note Holder (unless it is the same Person as or an Affiliate of the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Servicing Agreement with respect to their rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the same rights and powers of the Controlling Class Representative under the Lead Servicing Agreement with respect to the other mortgage loans included in the Lead Securitization, without limitation, the right to consent and/or consult regarding Major Decisions and other servicing matters, the right to advise (1) the Special Servicer with respect to all Specially Serviced Loans and (2) the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, and the right to direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Controlling Class Representative may deem advisable or as to which provision is otherwise made therein, in each case subject to the terms and conditions of the Lead Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Controlling Note Holder (or the master servicer of Non-Lead Securitization on its behalf), within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Servicing Agreement due to the existence of a Control Termination Event or a Consultation Termination Event) and (ii) to consult with the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the extent having received such notices, information and reports, such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten Business Days from the delivery to such Non-Controlling Note Holder (or the master servicer of Non-Controlling Note Securitization on its behalf) by the Lead Securitization Note Holder of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Lead Securitization Subordinate Class Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult with such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten-Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten-Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of the Non-Controlling Note Holders (or the Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may make any Major Decision or take any action set forth in the Asset Status Report before the expiration of the aforementioned ten-Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by any Non-Controlling Note Holder (or the Non-Controlling Note Holder Representative). In addition to the consultation rights of the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) provided in the immediately preceding paragraph, the Non-Controlling Note Holder shall have the right to attend annual meetings (either telephonically or in person, in the discretion of the Servicer) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed; provided that the Non-Controlling Note Holder, at the request of the Master Servicer or the Special Servicer, as applicable, shall execute a confidentiality agreement in form and substance satisfactory to it, the Master Servicer or the Special Servicer, as applicable, and the Lead Securitization Note Holder. (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead ~~Securitization~~ Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.rela

Appears in 3 contracts

Samples: Co Lender Agreement (BMO 2024-5c8 Mortgage Trust), Co Lender Agreement (BBCMS Mortgage Trust 2024-5c31), Co Lender Agreement (BMO 2024-5c8 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement ~~(including but not limited to Section 5(b))~~ and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no the Non-Lead Securitization Note ~~Holder~~ Holders shall have ~~any~~ no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, ~~each~~ the Non-Lead Securitization Note ~~Holder agrees~~ Holders agree that it they shall have no right to, and hereby presently and irrevocably ~~assigns~~ assign and ~~conveys~~ convey to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note ~~Holder has~~ Holders have to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to ~~any~~ the Non-Lead Securitization Note ~~Holder~~ Holders in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, ~~each~~ the Non-Lead Securitization Note ~~Holder~~ Holders hereby ~~acknowledges~~ acknowledge the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each~~ any Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement and shall be required to require that all offers be submitted to the Certificate Administrator or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offer amount (subject to a cap of $2,500,000). Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement; provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received from an Interested Person represents a fair price for the Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the Appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee shall instruct the Appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of ~~each~~ the Non-Lead Securitization Note ~~Holder~~ Holders (provided that such consent is not required ~~from~~ if any Non-Lead Securitization Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ the Non-Lead Securitization Note ~~Holder~~Holders: (a) at least ~~15 business days~~ fifteen (15) Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 ten (10) days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 ten (10) days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by ~~such~~ any Non-Lead Securitization Note Holder that are material to the sale price of the Mortgage ~~Loan;~~ Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other ~~offerors~~offerors and the Lead Securitization Subordinate Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by ~~the Servicer or the Special~~ any Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-Lead Securitization Note ~~Holder~~ Holders may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-Lead ~~Securitization~~ Note Holders and the applicable Non-Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ Representative shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. ~~Each~~ The Non-Lead Securitization Note ~~Holder~~ Holders hereby ~~appoints~~ appoint the Lead Securitization Note Holder as ~~its~~ their agent, and ~~grants~~ grant to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and ~~its~~ their proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the~~ Non-Lead Securitization Notes. ~~Each~~ The Non-Lead Securitization Note ~~Holder~~ Holders further ~~agrees~~ agree that, upon the request of the Lead Securitization Note Holder, ~~each~~ the Non-Lead Securitization Note ~~Holder~~ Holders shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the ~~related~~ original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-Lead Securitization ~~Notes~~Note, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver ~~the~~ any Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the Initial Note A-2A Holder from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by the Initial Note A-2A Holder with respect to Lead Securitization Note or material document defect with respect to the documents delivered by the Initial Note A-2A Holder with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to the Non-Lead Securitization Note Holders the benefit of any representation or warranty made by the Initial Note A-2A Holder or any document delivery obligation imposed on the Initial Note A-2A Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by the Initial Note A-2A Holder in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage~~ is a Specially Serviced Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or ~~any portion thereof). Each Note Holder agrees that~~ to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement relating~~ Agreement), by the Special Servicer, in each case pursuant to ~~the administration of the Mortgage Loan. Anything herein or in~~ the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.Servicing

Appears in 3 contracts

Samples: Co Lender Agreement (Benchmark 2018-B7 Mortgage Trust), Co Lender Agreement (Benchmark 2018-B6 Mortgage Trust), Co Lender Agreement (Benchmark 2018-B5 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no the Non-Lead Securitization Note Holder shall have ~~any~~ no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, ~~each~~ the Non-Lead Securitization Note Holder agrees that it shall have no right to, and the Non-Lead Securitization Note Holders each hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to ~~any~~ the Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Each Note Holder hereby irrevocably appoints the Master Servicer, the Special Servicer and the Trustee in the Lead Securitization as such Note Holder’s attorney-in-fact to sign any documents reasonably required with respect to the administration and servicing of the Mortgage Loan on its behalf under the Lead Securitization Servicing Agreement (subject at all times to the rights of the Note Holder set forth herein and in the Lead Securitization Servicing Agreement). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, ~~each~~ the Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the ~~Non-Lead Securitization~~ Notes together ~~with the Lead Securitization Notes~~ as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ the Notes together ~~with~~ as notes evidencing one whole loan and shall require that all offers be submitted to the ~~Lead Securitization Notes~~ Trustee in ~~the manner set forth in the Lead Securitization Servicing Agreement~~writing. ~~Notwithstanding the foregoing, the~~ The Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan ~~if the Mortgage Loan becomes a Specially Serviced Loan~~ without the written consent of ~~each~~ the Non-Lead Securitization Note ~~Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate)~~ Holders unless the Special Servicer has delivered to ~~each~~ such Non-Lead Securitization Note ~~Holder~~Holders: (a) at least ~~15 business days~~ fifteen (15) Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 ten (10) days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 ten (10) days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan;~~ Holders and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the related “Subordinate Class Representative” (or other similar term)) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed ~~sale;~~ sale provided that such Non-Lead Securitization Note ~~Holder~~ Holders may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the ~~terms~~ foregoing, each of the ~~Lead Securitization Servicing Agreement~~Controlling Note Holder, ~~each~~ the Controlling Note Holder Representative, the Non-Lead Securitization Note Holders and any Non-Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ Representative shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of the Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original ~~Non-Lead Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of a representation or warranty made by such Person with respect to the Lead Securitization Note or a material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to the Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) The Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required: (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Lead Securitization Note Holder (or its related Note Holder Representative), within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the expiration of a Control Termination Event or a Consultation Termination Event) and (ii) to consult with the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder of written notice of a proposed action, together with copies of the notice, information and report required to be provided to the Lead Securitization Subordinate Class Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult with such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative). In addition to the consultation rights of the Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) provided for above, the Non-Controlling Note Holder shall have the right to attend annual meetings (which may be held telephonically or in person, in the discretion of the Master Servicer) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed. (c) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. ~~Anything herein or in~~ In the ~~Lead Securitization Servicing Agreement to the contrary notwithstanding, if~~ event that one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to ~~the~~ any other Note ~~Holders~~ Holder be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to ~~calculating~~ the Securitization of any ~~amount of interest~~ Note (including any New Note), all notices, reports, information or ~~principal due~~ other deliverables required to be delivered to a Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) only need to be delivered to the related Note ~~Holders under Section 3 hereof~~Holder (or its Note Holder Representative) and, when so delivered to such Note Holder (or Note Holder Representative, as applicable), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall ~~reduce the Note B Principal Balance (not below zero) by any Realized Loss~~ be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the ~~Mortgage Loan~~Lead Securitization Servicing Agreement. Following the Securitization of any Note (including any New Note), as applicable, all notices, reports, information or other deliverables required to be delivered to a Note Holder pursuant to this Agreement or the Lead Securitization Servicing Agreement by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be delivered to the master servicer and ~~after~~ the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss special servicer with respect to such Securitization (who then may forward such items to the ~~Mortgage Loan~~party entitled to receive such items as and to the extent provided in the related Securitization Servicing Agreement) and, when so delivered to such master servicer and the special servicer, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be deemed to have satisfied its delivery obligations with respect to such items hereunder or under the Lead Securitization Servicing Agreement.

Appears in 3 contracts

Samples: Agreement Between Note Holders (Benchmark 2024-V9 Mortgage Trust), Agreement Between Note Holders (Bank5 2024-5yr7), Agreement Between Note Holders (Benchmark 2024-V7 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the ~~Master~~ Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the ~~Master~~ Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the ~~Master~~ Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any ~~Non-~~Non- Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the ~~Master~~ Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a Mortgage Loan Borrower ~~Affiliate~~Related Party) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the ~~proposed~~ permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the ~~Mortgage Loan~~Mortgaged Properties, and any documents in the ~~servicing file~~ Loan File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no not less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan, unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Note Holders as a collective whole (taking into account that the B Notes are junior to the A Notes). The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as or an Affiliate of the Mortgage Loan Borrower) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the same rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement with respect to the other mortgage loans included in the Lead Securitization, including without limitation, the right to consent and/or consult regarding Major Decisions and other servicing matters, the right to advise (1) the Special Servicer with respect to all Specially Serviced Loans and (2) the Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Servicer must obtain the consent or deemed consent of the Special Servicer, and the right to direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Lead Securitization Subordinate Class Representative may deem advisable or as to which provision is otherwise made therein, in each case subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Servicer or the Special Servicer acting on its behalf) shall be required to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Controlling Note Holder or its Non-Controlling Note Holder Representative, within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement prior to or following the termination of a Controlling Class Control Period or a Controlling Class Consultation Period (each as defined in the Lead Securitization Servicing Agreement)). (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (cf) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction ~~amount~~Amount. Appraisal Reduction ~~amounts~~ Amounts with respect to the Mortgage Loan shall be allocated, first, to the B ~~Note~~Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances), up to its respective outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 3 contracts

Samples: Co Lender Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2016-C28), Co Lender Agreement (CSAIL 2016-C5 Commercial Mortgage Trust), Co Lender Agreement (CSAIL 2016-C6 Commercial Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder)~~ its behalf), shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or to consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, no Non-Lead Securitization Note Holder shall have any right to, and each Non-Lead Securitization Note Holder ~~agrees that it shall have no right to, and~~ hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) the rights, if any, that such Note Holder has from and after the initial Securitization Date to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Loan, to sell the ~~Non-Lead Securitization~~ Notes together ~~with the Lead Securitization Notes~~ as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ the Notes together as notes evidencing one whole loan and shall require that all offers be submitted to the Special Servicer in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer (unless the offeror is an Interested Person, in which case the Trustee shall make such determination); provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization ~~Notes~~ Servicing Agreement within the preceding nine (9)-month period or, in the ~~manner set forth~~ absence of any such Appraisal, on a new Appraisal. The Trustee shall select the appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall instruct the appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder (~~provided that such consent is not required from any~~ unless with respect to each Non-Lead Securitization Note ~~Holder that~~ Holder, 50% or more of the related Note (or the class of securities issued in the applicable Non-Lead Securitization designated as the “controlling class” or such other class(es) otherwise assigned the rights to exercise the rights of the “Controlling Note Holder” is a held by the Mortgage Loan Borrower ~~Affiliate~~or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ such Non-Lead Securitization Note Holder: (a) at least ~~15 business days~~ fifteen (15) Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 ten (10) days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 ten (10) days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicer Mortgage File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors)~~ offerors and the related Lead Securitization Controlling Class Representative prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms of the Lead Securitization Servicing Agreement~~foregoing, each ~~Non-Lead Securitization~~ Note Holder (or its ~~representative) that is not a Borrower Affiliate~~ Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original ~~Non-Lead Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the~~ is a Specially Serviced Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or ~~any portion thereof). Each Note Holder agrees that~~ to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement relating~~ Agreement), by the Special Servicer, in each case pursuant to the ~~administration~~ Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each Note Holder. The Note Holders agree to be bound by the terms of the ~~Mortgage Loan~~Lead Securitization Servicing Agreement. ~~Anything herein~~ All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement ~~to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder~~ shall not be ~~required to reimburse such~~ amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as, or ~~any other Person for payment of (i~~is an Affiliate of, the Mortgage Loan Borrower) ~~any taxes imposed on such REMIC, (ii) any costs or expenses relating~~ shall be a third-party beneficiary to the ~~administration of such REMIC or~~ Lead Securitization Servicing Agreement with respect to ~~any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances~~ its rights as specifically provided for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficittherein. (c) ~~The Mortgage Loan~~ Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be ~~treated as a single loan for purposes~~ required (i) to provide copies of ~~calculating~~ any notice, information and report that it is required to provide to the ~~Appraisal Reduction amount. Appraisal Reduction amounts~~ Lead Securitization Controlling Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage ~~Loan shall~~ Loan, to each Non-Lead Securitization Note Holder (or its Note Holder Representative), within the same time frame it is required to provide to the Lead Securitization Controlling Class Representative (for this purpose, without regard to whether such items are actually required to be ~~allocated, first~~provided to the Lead Securitization Controlling Class Representative under the Lead Securitization Servicing Agreement due to the expiration of the related “Subordinate Control Period” (as defined under the Lead Securitization Servicing Agreement) or the “Collective Consultation Period” (as defined under the Lead Securitization Servicing Agreement)) and (ii) to use reasonable efforts to consult with each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the ~~B Note~~extent having received such notices, ~~up to~~ information and reports, such Non-Controlling Note Holder (or its ~~outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d~~Non-Controlling Note Holder Representative) ~~Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss~~ requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note ~~B Principal Balance has been reduced~~ Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report required to ~~zero~~be provided to the Lead Securitization Controlling Class Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall ~~reduce~~ no longer be obligated to consult with such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note ~~A Principal Balance pro rata~~ Holder (~~based~~ or the Master Servicer or the Special Servicer acting on ~~their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.~~its

Appears in 3 contracts

Samples: Agreement Between Note Holders (Morgan Stanley Capital I Trust 2016-Ubs9), Agreement Between Note Holders (Bank of America Merrill Lynch Commercial Mortgage Trust 2016-Ubs10), Agreement Between Note Holders (Gs Mortgage Securities Corp Ii)

Administration of the Mortgage Loan. (a) Subject to this Agreement ~~(including but not limited to Section 5(b))~~ and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no the Non-Lead Securitization Note ~~Holder~~ Holders shall have ~~any~~ no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, ~~each~~ the Non-Lead Securitization Note ~~Holder agrees~~ Holders agree that it they shall have no right to, and hereby presently and irrevocably ~~assigns~~ assign and ~~conveys~~ convey to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note ~~Holder has~~ Holders have to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to ~~any~~ the Non-Lead Securitization Note ~~Holder~~ Holders in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, ~~each~~ the Non-Lead Securitization Note ~~Holder~~ Holders hereby ~~acknowledges~~ acknowledge the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each~~ any Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing ~~Agreement. Notwithstanding~~ Agreement and shall be required to require that all offers be submitted to the ~~foregoing~~Certificate Administrator or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization ~~Note Holder~~ Servicing Agreement in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offer amount (~~or the Special Servicer acting on its behalf) will not be permitted~~ subject to ~~sell~~ a cap of $2,500,000). Whether any cash offer constitutes a fair price for the Mortgage Loan if the Mortgage Loan becomes a Specially Serviced Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received shall be determined by the Trustee or Special ~~Servicer~~ Servicer, as applicable, in ~~connection~~ accordance with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement; provided, ~~each Non-Lead Securitization Note Holder (or its representative)~~ that ~~is not~~ no offer from an Interested Person shall constitute a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: fair price unless (i) it is the ~~Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code,~~ highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any ~~real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to~~ offer received from an Interested Person represents a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of fair price for the Mortgage Loan, ~~consent to or withhold consent from any action of~~ the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph Trustee shall be ~~effected by compliance~~ supplied with ~~any REMIC provisions~~ and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement ~~relating to~~ within the ~~administration~~ preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the Appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan~~. Anything herein~~ , the Trustee shall instruct the Appraiser to take into account (in addition to the results of any Appraisal or in updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing ~~Agreement to~~ Agreement), as applicable, among other factors, the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance period and amount of any ~~tax under such REMIC or (iii) any advances for any of~~ delinquency on the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the affected Mortgage Loan, the occupancy level and ~~after~~ physical condition of the ~~Note B Principal Balance has been reduced to zero,~~ related Mortgaged Property and the ~~Servicer shall reduce~~ state of the ~~Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.~~local

Appears in 3 contracts

Samples: Co Lender Agreement (Benchmark 2018-B3 Commercial Mortgage Trust), Co Lender Agreement (BENCHMARK 2018-B2 Mortgage Trust), Co Lender Agreement (Benchmark 2018-B1 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and ~~consents~~consent, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a Borrower ~~Affiliate~~Related Party) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: : (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the ~~proposed~~ permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the ~~Mortgage Loan~~Mortgaged Property, and any documents in the ~~servicing file~~ Mortgage File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no not less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan, unless such Person is a Borrower Related Party. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Accepted Servicing Practices, taking into account the interests of each of the Note Holders as a collective whole (taking into account that Note B is junior to the A Notes). The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is a Borrower Related Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to the Non-Controlling Note Holder or its Non-Controlling Note Holder Representative, within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) to consult on a non-binding basis with the Non-Controlling Note Holder or its Non-Controlling Note Holder Representative (until the occurrence and continuance of a consultation termination event under the related pooling and servicing agreement) and consider alternative actions recommended by the Non-Controlling Note Holder Representative with respect to any such Major Decisions (provided that if the Non-Controlling Note Holder does not consult, or notify the Special Servicer that it will not consult, to such Major Decisions within ten (10) business days, as applicable, the Non-Controlling Note Holder shall be deemed to have consulted to such Major Decisions). (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 3 contracts

Samples: Co Lender Agreement (Bank 2021-Bnk34), Co Lender Agreement (Benchmark 2021-B26 Mortgage Trust), Co Lender Agreement (Benchmark 2021-B25 Mortgage Trust)

Appears in 3 contracts

Samples: Agreement Between Note Holders (BBCMS Mortgage Trust 2024-C24), Agreement Between Note Holders (Benchmark 2023-B40 Mortgage Trust), Agreement Between Note Holders (BBCMS Mortgage Trust 2023-C22)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(d)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and each Non-Lead Securitization Note Holder hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Mortgage Loan, to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ the Notes together ~~with~~ in such manner as will be reasonably likely to realize a fair price. Subject to the ~~Lead Securitization Notes in~~ other provisions of this paragraph and the ~~manner set forth in~~ two following paragraphs and the applicable provisions of the Lead Securitization Servicing Agreement, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan. The Special Servicer shall notify the Controlling Note Holder Representative and each Non-Controlling Note Holder Representative of any inquiries or offers received regarding the sale of such Defaulted Mortgage Loan. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person (provided that the Trustee may not be an offeror) unless (i) the offer is equal to or greater than the applicable Purchase Price, (ii) the offer is the highest offer received and (iii) at least two other offers are received from independent third parties; provided, however, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two other offers are received from independent third parties. In all cases under this Agreement (except to the extent the Trustee is not required to determine whether any cash offer constitutes a fair price for the Mortgage Loan pursuant to the immediately preceding sentence), in determining whether any offer received from an Interested Person represents a fair price for the Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding 9-month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new Appraisal shall be an Appraiser selected by (i) the Special Servicer if no Interested Person is making an offer with respect to the Mortgage Loan and (ii) the Trustee if an Interested Person is so making an offer. The cost of any such Appraisal shall be covered by, and shall be reimbursable as, a Property Advance. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for the Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement within the prior 9 months), and in determining whether any offer from an Interested Person constitutes a fair price for the Mortgage Loan, any Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for the Mortgage Loan shall in all cases be deemed a fair price; provided, however, that with respect to Interested Parties, the requirements of the first sentence of this paragraph must be satisfied. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Interested Person) designate an independent third party expert in real estate or commercial mortgage loan matters with at least 5 years’ experience in valuing or investing in loans similar to the Mortgage Loan that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan. If the Trustee designates such a third party to make such determination, the Trustee will be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable by the Interested Person; provided that the Trustee will not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any Non-Lead Securitization~~ if such Non- Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by any such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage ~~Loan;~~ Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the Lead Securitization Subordinate Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by ~~the Servicer or the Special~~ any Servicer in connection with the proposed sale; ~~provided~~ provided, that ~~such~~ any Non-~~Lead Securitization~~ Controlling Note Holder may ~~waive~~ waive, as to itself, any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and each Non- Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the related Non-Lead Securitization ~~Notes~~Note. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ such Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of the Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and, following the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within~~ Securitization Date, together with the ~~meaning~~ Lead Securitization Servicing Agreement. After the Securitization Date, the servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of~~ Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder ~~therein~~ shall ~~at all times qualify~~ cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of both Note Holders as ~~“foreclosure property” within~~ a collective whole. The Note Holders agree to be bound by the ~~meaning of Section 860G(a)(8)~~ terms of the ~~Code~~ Lead Securitization Servicing Agreement. All rights and ~~(iii) no Servicer may modify, waive or amend any provision~~ obligations of the ~~Mortgage Loan~~Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, ~~consent to~~ the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially and adversely affect any Non-Lead Securitization Note Holder without the related Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as or ~~withhold consent from any action~~ an Affiliate of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be ~~effected by compliance with any REMIC provisions in~~ a third- party beneficiary to the Lead Securitization Servicing Agreement ~~relating~~ with respect to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person its rights as specifically provided for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficittherein. (c) The ~~Mortgage Loan~~ Controlling Note Holder (or its Controlling Note Holder Representative) shall ~~be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated~~have, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, all of the same rights and ~~after~~ powers of the ~~Note B Principal Balance has been reduced~~ Controlling Class Representative under the Lead Securitization Servicing Agreement with respect to ~~zero~~the other mortgage loans included in the Lead Securitization, without limitation, the right to consent and/or consult regarding Major Decisions and other servicing matters, the right to advise (1) the Special Servicer ~~shall reduce~~ with respect to all Specially Serviced Loans and (2) the ~~Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case~~Special Servicer with respect to non-Specially Serviced Loans as to all matters for which the Master Servicer must obtain the consent or deemed consent of the Special Servicer, ~~not below zero) by any Realized Loss~~ and the right to direct the Special Servicer to take, or to refrain from taking, such other actions with respect to the Mortgage Loan as the Controlling Class Representative may deem advisable or as to which provision is otherwise made therein, in each case subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan., to each Non- Controlling Note Holder (or its Non-Controlling Note Holder Representative), within the same time frame it is required to provide such notice, information or report to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) to consult with each Non- Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non- binding basis, to the extent having received such notices, information and reports, such Non- Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative

Appears in 3 contracts

Samples: Co Lender Agreement (BMO 2024-5c8 Mortgage Trust), Co Lender Agreement (BMO 2024-5c8 Mortgage Trust), Co Lender Agreement (BMO 2024-5c8 Mortgage Trust)

Appears in 3 contracts

Samples: Co Lender Agreement (Morgan Stanley Capital I Trust 2019-L2), Co Lender Agreement (Morgan Stanley Capital I Trust 2018-H4), Co Lender Agreement (Morgan Stanley Capital I Trust 2018-H4)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow ~~the~~ Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced Loan~~defaulted loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on its behalf ~~of the Lead Securitization Note Holder~~) to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note together with~~ the ~~Lead Securitization~~ Notes in the manner set forth in the Lead Securitization Servicing Agreement and shall be required to require that all offers be submitted to the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder ~~(provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate)~~ unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms~~ foregoing, each of the ~~Lead Securitization Servicing Agreement~~Controlling Note Holder, ~~each~~ the Controlling Note Holder Representative, any Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and any Non-Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original ~~Non-Lead Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization ~~Note~~ Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization ~~is terminated~~ Note(s) are repurchased from the Lead Securitization Trust by the holder of such Lead Securitization Note(s) that sold such Lead Securitization Note(s) into such securitization trust in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note(s) or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note(s) upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note(s) that sold such Lead Securitization Note(s) into the Lead Securitization Trust or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement and this Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with Accepted Servicing Practices, taking into account the interests of the Note Holders as a collective whole and taking into account the subordinate nature of the Junior Note. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and/or the Controlling Class Representative on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is Mortgage Loan Borrower Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) [Reserved]. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide reasonable prior notice to each Non-Lead Securitization Note Holder (or its Note Holder Representative) of the implementation of any Major Decision or any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan and (ii) to use reasonable efforts to consult each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis if such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report provided to investors in the Lead Securitization relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report provided to the Controlling Class Representative (or that would have been provided to the Controlling Class Representative if it had not lost its consent and/or consultation rights with respect to the matter), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by a Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative). In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to an annual meeting (which may be held telephonically) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed. (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that ~~the Notes~~ each Note shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the ~~Code,~~ Code (for that purpose the loan-to-value test in Section 860G(a)(3) shall be applied by treating the Senior Notes and the Junior Note as constituting a single debt instrument) (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a ~~REMIC~~REMIC and another is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 3 contracts

Samples: Agreement Between Note Holders (Bank 2022-Bnk39), Agreement Between Note Holders (Bank 2021-Bnk38), Agreement Between Note Holders (Bank 2021-Bnk37)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and ~~consents~~consent, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a Borrower ~~Affiliate~~Related Party) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the ~~proposed~~ permitted sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the ~~Mortgage Loan~~Mortgaged Property, and any documents in the ~~servicing file~~ Mortgage File reasonably requested by such Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no not less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage Loan, unless such Person is a Borrower Related Party. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the related Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Accepted Servicing Practices, taking into account the interests of each of the Note Holders as a collective whole. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is a Borrower Related Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) The Controlling Note Holder (or its Controlling Note Holder Representative) shall have, with respect to the Mortgage Loan, all of the rights and powers of the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement subject to the terms and conditions of the Lead Securitization Servicing Agreement. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall (i) provide copies of any notice, information and report that it is required to provide to the Lead Securitization Subordinate Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, to each Non-Controlling Note Holder or its Non-Controlling Note Holder Representative, within the same time frame it is required to provide to the Lead Securitization Subordinate Class Representative (for this purpose, without regard to whether such items are actually required to be provided to the Lead Securitization Subordinate Class Representative under the Lead Securitization Servicing Agreement due to the occurrence of a Control Termination Event or a Consultation Termination Event) and (ii) consult on a non-binding basis with each Non-Controlling Note Holder or its Non-Controlling Note Holder Representative (until the occurrence and continuance of a consultation termination event under the related pooling and servicing agreement) and consider alternative actions recommended by such Non-Controlling Note Holder Representative with respect to any such Major Decisions (provided that if a Non-Controlling Note Holder does not consult, or notify the Special Servicer that it will not consult, to such Major Decisions within ten (10) business days, as applicable, such Non-Controlling Note Holder shall be deemed to have consulted to such Major Decisions). (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. All costs and expenses of compliance with this Section 4(e), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne by each Note Holder with respect to the REMIC containing the Note owned by such Note Holder. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a ~~REMIC~~REMIC and the other is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 3 contracts

Samples: Co Lender Agreement (Benchmark 2024-V7 Mortgage Trust), Co Lender Agreement (BMO 2024-5c3 Mortgage Trust), Co Lender Agreement (Benchmark 2024-V5 Mortgage Trust)

Appears in 3 contracts

Samples: Co Lender Agreement (GS Mortgage Securities Trust 2016-Gs3), Co Lender Agreement (Gs Mortgage Securities Corp Ii), Co Lender Agreement (Gs Mortgage Securities Corp Ii)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(d)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and each Non-Lead Securitization Note Holder hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Loan, to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ the Notes together ~~with~~ in such manner as will be reasonably likely to realize a fair price. Subject to the ~~Lead Securitization Notes in~~ other provisions of this paragraph and the ~~manner set forth in~~ two following paragraphs and the applicable provisions of the Lead Securitization Servicing Agreement, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Loan. The Special Servicer shall notify the Controlling Note Holder Representative and each Non-Controlling Note Holder Representative of any inquiries or offers received regarding the sale of such Defaulted Loan. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person (provided that the Trustee may not be an offeror) unless (i) the offer is equal to or greater than the applicable Purchase Price, (ii) the offer is the highest offer received and (iii) at least two other offers are received from independent third parties; provided, however, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two other offers are received from independent third parties. In all cases under this Agreement (except to the extent the Trustee is not required to determine whether any cash offer constitutes a fair price for the Mortgage Loan pursuant to the immediately preceding sentence), in determining whether any offer received from an Interested Person represents a fair price for the Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding 9-month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new Appraisal shall be an Appraiser selected by (i) the Special Servicer if no Interested Person is making an offer with respect to the Mortgage Loan and (ii) the Trustee if an Interested Person is so making an offer. The cost of any such Appraisal shall be covered by, and shall be reimbursable as, a Property Advance. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for the Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement within the prior 9 months), and in determining whether any offer from an Interested Person constitutes a fair price for the Mortgage Loan, any Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for the Mortgage Loan shall in all cases be deemed a fair price; provided, however, that with respect to Interested Parties, the requirements of the first sentence of this paragraph must be satisfied. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Interested Person) designate an independent third party expert in real estate or commercial mortgage loan matters with at least 5 years’ experience in valuing or investing in loans similar to the Mortgage Loan that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan. If the Trustee designates such a third party to make such determination, the Trustee will be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable by the Interested Person; provided that the Trustee will not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if such Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.at

Appears in 3 contracts

Samples: Co Lender Agreement (CD 2017-Cd3 Mortgage Trust), Co Lender Agreement (Citigroup Commercial Mortgage Trust 2016-P6), Co Lender Agreement (CD 2016-Cd2 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b)~~5(f) below) and the ~~Lead Securitization~~ Servicing ~~Agreement,~~ Agreement and ~~subject to~~ consistent with the ~~rights and consents, where required, of the Controlling Note Holder Representative~~Servicing Standard, the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other ~~remedy,~~ remedy and no ~~Non-Lead Securitization Note Holder~~ other Noteholder shall have any voting, consent or other rights whatsoever ~~except as explicitly set forth herein~~ with respect to the Lead Securitization ~~Note Holder~~Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the ~~Lead Securitization~~ Servicing ~~Agreement~~Agreement (including, without limitation, Section 5(f) below) and consistent with the Servicing Standard, each Non-Lead ~~Securitization Note Holder~~ Noteholder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) the rights, if any, that such ~~Note Holder~~ Non-Lead Noteholder has to, (i) call or cause the Lead Securitization ~~Note Holder~~ Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization ~~Note Holder~~ Noteholder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall not have any fiduciary duty to any Non-Lead ~~Securitization Note Holder~~ Noteholder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization ~~Note Holder~~ Noteholder from the obligation to make any disbursement of funds as set forth herein). Without limiting the foregoing, each Note A Holder acknowledges that the Note B Holder owes such Noteholder no fiduciary duty with respect to any action taken under the Mortgage Loan Documents and, except as provided herein or ~~its obligation to follow~~ in the Servicing ~~Standard~~ Agreement, need not consult with such Note A Holder with respect to any action taken by such Note B Holder in connection with the Mortgage Loan. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Servicing Agreement. Each Noteholder agrees to be bound by the terms of this Agreement and the Servicing Agreement. The Servicers shall service the Mortgage Loan in accordance with the ~~case~~ terms of this Agreement, including without limitation, the rights of the Note B Holder set forth in Section 5(f) below and consistent with the Servicing Standard. Servicing of the Mortgage Loan shall be carried out by the Master Servicer ~~or the Special Servicer) or any liability for failure to do so). Upon~~ and, if the Mortgage Loan ~~becoming~~ is a Specially Serviced Loan, by the Special Servicer, in each ~~Non-~~case pursuant to the Servicing Agreement and consistent with the Servicing Standard. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Lead Securitization Noteholder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of the Noteholders as a collective whole (it being understood that the interests of the Note B Holder ~~hereby acknowledges~~ are subordinate to the ~~right~~ A Notes, subject to the terms and ~~obligation~~ conditions of this Agreement, including without limitation the rights of the Controlling Noteholder), and the Note B Holder while it is not a Borrower Party shall be deemed a third party beneficiary of such provisions of the Servicing Agreement. The foregoing provisions of this Section 5(b) shall not limit or modify the rights of the Controlling Noteholder and/or the Controlling Noteholder Representative to exercise their respective rights specifically set forth under this Agreement. (c) Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement and this Agreement (including, without limitation, Sections 5(f) and 6), if the Servicer in connection with a Workout of the Mortgage Loan modifies the terms thereof in accordance herewith such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Mortgage Loan Rate or scheduled amortization payments on such Mortgage Loan are reduced, (iii) payments of interest or principal on such Mortgage Loan are waived, reduced or deferred or (iv) any other adjustment (other than an increase in the Mortgage Loan Rate or increase in scheduled amortization payments) is made to any of the terms of the Mortgage Loan, all payments to the Note A Holders and the Note B Holder pursuant to Section 3 and Section 4, as applicable, shall be made as though such Workout did not occur, with the payment terms of Note A remaining the same as they are on the date hereof, the full economic effect of all waivers, reductions or deferrals of amounts due on the Mortgage Loan attributable to such Workout shall be borne, first, by the Note B Holder, and then, by the Note A Holders (pro rata based on the Principal Balances of their respective Notes), in that order, in each case up to the amount otherwise due on such Note(s). Subject to the Servicing Agreement and this Agreement (including without limitation Sections 5(f) and (6)), in the case of any modification or amendment described above, the Lead Securitization Noteholder (or the Servicer on its behalf) will have the sole authority and ability to revise the payment provisions set forth in Section 3 and Section 4 above in a manner that reflects the subordination of Note B to the A Notes, with respect to the loss that is the result of such amendment or modification, including: (i) the ability to increase the Note A Percentage Interest, and to increase or reduce, as applicable, the Note B Percentage Interest in a manner that reflects a loss in principal as a result of such amendment or modification and (ii) the ability to change the Note A Rate and the Note B Rate, as applicable, in order to reflect a reduction in the Mortgage Loan Rate of the Mortgage Loan but shall not be permitted to change the order of the clauses set forth in Sections 3 and 4 hereof. Notwithstanding the foregoing, if any Workout, modification or amendment of the Mortgage Loan extends the original maturity date of the Mortgage Loan, for purposes of this paragraph, the Balloon Payment will be deemed not to be due on the original maturity date of the Mortgage Loan but will be deemed due on the extended maturity date of the Mortgage Loan. (d) All rights and obligations of the Lead Securitization ~~Note Holder (or~~ Noteholder described hereunder may be exercised by the ~~Special Servicer acting~~ Servicers on behalf of the Lead Securitization ~~Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan~~ Noteholder in accordance with the ~~terms of the Lead Securitization~~ Servicing Agreement and this Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a Specially Serviced Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (be) If any Note is included as an asset of a ~~real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “~~REMIC~~”), then~~, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall each qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the ~~Note Holders~~ Noteholders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the ~~interest~~ interests of ~~each Note Holder~~ the Noteholders therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the ~~Note Holders~~ Noteholders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three ~~(3)~~ months after the earliest startup day of ~~the~~ any REMIC which includes ~~the Notes (~~all or a portion of any ~~portion thereof)~~A Note. ~~Each Note Holder agrees~~ The Noteholders agree that the provisions of this ~~paragraph~~ Section 5(e) shall be effected by compliance ~~with any REMIC provisions in~~ by the Lead Securitization Noteholder or its assignees with this Agreement or the Servicing Agreement ~~relating to~~ or any other agreement which governs the administration of the Mortgage ~~Loan~~Loan or the Lead Securitization Noteholder’s interests therein. All costs and expenses of compliance with this Section 5(e), to the extent that such costs and expenses relate to administration of a REMIC or to any determination respecting the amount, payment or avoidance of any tax under the REMIC Provisions or the actual payment of any REMIC tax or expense, shall be borne (without reimbursement under Section 3) by each Noteholder with respect to the REMIC containing the Note owned by such Noteholder. Anything herein or in the ~~Lead Securitization~~ Servicing Agreement to the contrary notwithstanding, ~~if one of~~ in the ~~Notes~~ event that a Note is included in a ~~REMIC~~REMIC and the other Notes are not, ~~such~~ the other ~~Note Holder~~ Noteholders shall not be required to reimburse such Noteholder that deposited its Note ~~Holder~~ in the REMIC or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to ~~the~~ either such other ~~Note Holders~~ Noteholder be reduced to offset or make-up any such payment or deficit. (cf) ~~The~~ (i) Subject to clauses (ii) or (iii) below, if any consent, modification, amendment or waiver under or other action in respect of the Mortgage Loan (whether or not a Servicing Transfer Event has occurred and is continuing) that would constitute a Major Decision has been requested or proposed or any fact or circumstance has occurred requiring that a Major Decision be made, or if the Master Servicer or Special Servicer otherwise intends to make a Major Decision, then the Master Servicer or Special Servicer, as applicable, shall ~~be treated as~~ deliver prompt written notice thereof and a ~~single loan for purposes of calculating~~ Major Decision Reporting Package to the ~~Appraisal Reduction amount. Appraisal Reduction amounts~~ Controlling Noteholder and its Controlling Noteholder Representative, if any, at least ten (10) Business Days (30 days with respect to any proposed modification or waiver of any material provision in the related Mortgage Loan Documents governing the type, nature or amount of insurance coverage required to be obtained and maintained by the Mortgage Loan ~~shall be allocated, first,~~ Borrower) prior to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss taking action with respect to ~~the Mortgage Loan, and after the Note B Principal Balance has been reduced~~ such Major Decision (or making a determination not to ~~zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss~~ take action with respect to such Major Decision), and none of the ~~Mortgage Loan~~Master Servicer, the Special Servicer or any other Person shall implement any decision with respect to such Major Decision (or make a determination not to take action with respect to such Major Decision) unless and until the Master Servicer or the Special Servicer, as applicable, has received the written consent of the Controlling Noteholder (or its Controlling Noteholder Representative).

Appears in 3 contracts

Samples: Agreement Between Noteholders (UBS Commercial Mortgage Trust 2019-C18), Agreement Between Noteholders (CF 2019-Cf3 Mortgage Trust), Agreement Between Noteholders (Benchmark 2019-B14 Mortgage Trust)

Appears in 3 contracts

Samples: Agreement Between Note Holders (BBCMS Mortgage Trust 2019-C4), Agreement Between Note Holders (Wells Fargo Commercial Mortgage Trust 2019-C51), Agreement Between Note Holders (Wells Fargo Commercial Mortgage Trust 2019-C52)

Appears in 3 contracts

Samples: Agreement Between Noteholders (Citigroup Commercial Mortgage Trust 2017-P7), Agreement Between Noteholders (CSMC 2016-NXSR Commercial Mortgage Trust), Agreement Between Noteholders (Wells Fargo Commercial Mortgage Trust 2016-Nxs6)

Appears in 2 contracts

Samples: Co Lender Agreement (JPMDB Commercial Mortgage Securities Trust 2017-C5), Co Lender Agreement (GS Mortgage Securities Trust 2017-Gs5)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to ~~Section 5(b~~Sections 2(a) and 5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, no Non-Lead Securitization Note Holder shall have any right to, and each Non-Lead Securitization Note Holder ~~agrees that it shall have no right to, and~~ hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Loan, to sell the ~~Non-Lead Securitization~~ Notes together ~~with the Lead Securitization Notes~~ as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall sell the Notes together as notes evidencing one whole loan and shall require that all offers be ~~required~~ submitted to ~~sell each Non-Lead Securitization Note together~~ the Trustee in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer (unless the offeror is an Interested Person, in which case the Trustee shall make such determination); provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization ~~Notes~~ Servicing Agreement within the preceding nine (9)-month period or, in the ~~manner set forth~~ absence of any such Appraisal, on a new Appraisal. The Trustee shall select the appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Mortgage Loan, the Trustee or the Special Servicer, as applicable, shall instruct the appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Mortgage Loan, the occupancy level and physical condition of the Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters with at least five (5) years’ experience in valuing or investing in loans similar to the Mortgage Loan that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan, and that has been retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required ~~from~~ with respect to any Non-Lead Securitization Note ~~Holder~~ that is held by a Borrower ~~Affiliate~~Party) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note Holder that are material to the sale price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the Lead Securitization Directing Certificateholder or the Controlling Note Holder, as applicable) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms of the Lead Securitization Servicing Agreement~~foregoing, each ~~Non-Lead Securitization~~ Note Holder (or its ~~representative) that is not a Borrower Affiliate~~ Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan (unless such Person is a Borrower Party). Notwithstanding anything contained in the preceding paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the offering Interested Person purchaser) designate an independent third party expert in real estate or commercial mortgage loan matters with at least five (5) years’ experience in valuing loans similar to the Mortgage Loan, that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan. If the Trustee designates such third party to make such determination, the Trustee shall be entitled to rely conclusively upon such third party’s determination. The reasonable fees of, and the costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party shall be covered by, and shall be reimbursable, from the offering Interested Person. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the~~ any related original ~~Non-Lead Securitization Note,~~ documentation evidencing its Note (endorsed in ~~blank,~~ blank if necessary) to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization ~~is terminated~~ Note(s) are repurchased by the holder(s) of such Lead Securitization Note(s) that sold such Lead Securitization Note(s) into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note(s) or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note(s) upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder(s) of the Lead Securitization Note(s) that sold such Lead Securitization Note(s) into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) ~~If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of~~ Subject to Section ~~860D(a) of the Code (a “REMIC”~~5(a), ~~then, any provision~~ the administration of ~~this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage~~ is a Specially Serviced Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions as defined in the Lead Securitization Servicing ~~Agreement relating~~ Agreement) (or to the ~~administration of the Mortgage Loan. Anything herein or~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement~~ Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary ~~notwithstanding~~contained herein, ~~if one of~~ in accordance with the ~~Notes is included in a REMIC~~Lead Securitization Servicing Agreement, ~~such other~~ the Lead Securitization Note Holder shall ~~not be required~~ cause the Master Servicer and the Special Servicer to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to service and administer the Mortgage Loan ~~shall~~ in accordance with the Servicing Standard, taking into account the interests of each Note Holder. The Note Holders agree to be ~~allocated~~bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, ~~first~~the Special Servicer, the Certificate Administrator or the Trustee on behalf of the Lead Securitization Note Holder to the ~~B Note, up to~~ extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially and adversely affect any Non-Lead Securitization Note Holder in its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the capacity as Non-Lead Securitization Note ~~Holders under Section 3 hereof, the Servicer shall reduce the~~ Holder without such Non-Lead Securitization Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.Holder’s prior written

Appears in 2 contracts

Samples: Agreement Between Note Holders (BBCMS Mortgage Trust 2024-5c25), Agreement Between Note Holders (Benchmark 2024-V5 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(d)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no the Non-Lead Securitization Note Holder shall have ~~any~~ no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, ~~each~~ the Non-Lead Securitization Note Holder agrees that it shall have no right to, and the Non-Lead Securitization Note Holder hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to ~~any~~ the Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Mortgage Loan, to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ the Notes together ~~with~~ in such manner as will be reasonably likely to realize a fair price. Subject to the ~~Lead Securitization Notes in~~ other provisions of this paragraph and the ~~manner set forth in~~ two following paragraphs and the applicable provisions of the Lead Securitization Servicing Agreement, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan. The Special Servicer shall notify the Controlling Note Holder Representative and the Non-Controlling Note Holder Representative of any inquiries or offers received regarding the sale of such Defaulted Mortgage Loan. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person (provided that the Trustee may not be an offeror) unless (i) the offer is equal to or greater than the applicable Purchase Price, (ii) the offer is the highest offer received and (iii) at least two other offers are received from independent third parties; provided, however, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two other offers are received from independent third parties. In all cases under this Agreement (except to the extent the Trustee is not required to determine whether any cash offer constitutes a fair price for the Mortgage Loan pursuant to the immediately preceding sentence), in determining whether any offer received from an Interested Person represents a fair price for the Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding 9-month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new Appraisal shall be an Appraiser selected by (i) the Special Servicer if no Interested Person is making an offer with respect to the Mortgage Loan and (ii) the Trustee if an Interested Person is so making an offer. The cost of any such Appraisal shall be covered by, and shall be reimbursable as, a Property Advance. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for the Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement within the prior 9 months), and in determining whether any offer from an Interested Person constitutes a fair price for the Mortgage Loan, any Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for the Mortgage Loan shall in all cases be deemed a fair price; provided, however, that with respect to Interested Parties, the requirements of the first sentence of this paragraph must be satisfied. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Interested Person) designate an independent third party expert in real estate or commercial mortgage loan matters with at least 5 years’ experience in valuing or investing in loans similar to the Mortgage Loan that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan. If the Trustee designates such a third party to make such determination, the Trustee will be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable by the Interested Person; provided that the Trustee will not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required from ~~any~~ the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ if it is a the Mortgage Loan Borrower ~~Affiliate~~or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ the Non-~~Lead Securitization~~ Controlling Note Holder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by ~~such~~ the Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage ~~Loan;~~ Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors~~offerors and the Lead Securitization Subordinate Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by ~~the Servicer or the Special~~ any Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and the Non-Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. ~~Each~~ The Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization ~~Notes~~Note. ~~Each~~ The Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ the Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of the Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the ~~related~~ original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization ~~Notes~~Note, and the obligations of the Non-Lead Securitization Note ~~Holders~~ Holder to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the Person that sold such Lead Securitization Note into the Lead Securitization from the Lead Securitization Trust in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to the Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the Person that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of~~ Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder ~~therein~~ shall ~~at all times qualify~~ cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of both Note Holders as ~~“foreclosure property” within~~ a collective whole. The Note Holders agree to be bound by the ~~meaning of Section 860G(a)(8)~~ terms of the ~~Code~~ Lead Securitization Servicing Agreement. All rights and ~~(iii) no Servicer may modify, waive or amend any provision~~ obligations of the ~~Mortgage Loan~~Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, ~~consent to~~ the Special Servicer, the Certificate Administrator and/or the Trustee on behalf of the Lead Securitization Note Holder. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially and adversely affect the Non-Lead Securitization Note Holder without the Non-Lead Securitization Note Holder’s prior written consent. The Non-Lead Securitization Note Holder (unless it is the same Person as or ~~withhold consent from any action~~ an Affiliate of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be ~~effected by compliance with any REMIC provisions in~~ a third-party beneficiary to the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to ~~the Mortgage Loan shall be allocated, first, to the B Note, up to~~ its ~~outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances)~~rights as specifically provided for therein. (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 2 contracts

Samples: Co Lender Agreement (Benchmark 2023-V3 Mortgage Trust), Co Lender Agreement (Benchmark 2023-V2 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization ~~Note~~ Holder) the rights, if any, that such Note Holder has to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow ~~the~~ Accepted Servicing ~~Standard~~ Practices (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced Loan~~defaulted loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on its behalf ~~of the Lead Securitization Note Holder~~) to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall ~~be required to~~ sell ~~each Non-Lead Securitization Note together with~~ the ~~Lead Securitization~~ Notes in the manner set forth in the Lead Securitization Servicing Agreement and shall require that all offers be submitted to the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement in writing. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Trustee or Special Servicer, as applicable, in accordance with the terms of the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required ~~from~~ with respect to any Non-Lead Securitization Note ~~Holder~~ that is held by a Mortgage Loan Borrower ~~Affiliate~~Party) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 ~~business days~~ Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicing File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale~~; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence~~. Subject to the ~~terms~~ foregoing, each of the ~~Lead Securitization Servicing Agreement~~Controlling Note Holder, ~~each~~ the Controlling Note Holder Representative, any Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and any Non-Controlling Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage Loan. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original ~~Non-Lead Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization ~~Note~~ Notes upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization ~~is terminated~~ Notes are repurchased from the Lead Securitization Trust by the holders of such Lead Securitization Notes that sold such Lead Securitization Notes into such securitization trust in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Persons with respect to the Lead Securitization Notes or material document defect with respect to the documents delivered by such Persons with respect to the Lead Securitization Notes in connection with the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holders of the Lead Securitization Notes that sold such Lead Securitization Notes into the Lead Securitization Trust or any document delivery obligation imposed on any such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by any such Person in connection with the Lead Securitization. (b) The administration of the Mortgage Loan shall be governed by this Agreement and the Lead Securitization Servicing Agreement. The servicing of the Mortgage Loan shall be carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan (or to the extent otherwise provided in the Lead Securitization Servicing Agreement), by the Special Servicer, in each case pursuant to the Lead Securitization Servicing Agreement and this Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with Accepted Servicing Practices, taking into account the interests of the Note Holders as a collective whole. The Note Holders agree to be bound by the terms of the Lead Securitization Servicing Agreement. All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and/or the Controlling Class Representative on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement shall not be amended in any manner that may materially adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is a Mortgage Loan Borrower Party) shall be a third-party beneficiary to the Lead Securitization Servicing Agreement with respect to its rights as specifically provided for therein. (c) [Reserved]. (d) Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be required (i) to provide reasonable prior notice to each Non-Lead Securitization Note Holder (or its Note Holder Representative) of the implementation of any Major Decision or any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan and (ii) to use reasonable efforts to consult each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis if such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) requests consultation with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report provided to investors in the Lead Securitization relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of five (5) Business Days from the delivery to such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report provided to the Controlling Class Representative (or that would have been provided to the Controlling Class Representative if it had not lost its consent and/or consultation rights with respect to the matter), the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall no longer be obligated to consult such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such five (5) Business Day period (unless, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) proposes a new course of action that is materially different from the action previously proposed, in which case such five (5) Business Day period shall be deemed to begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the consultation rights of each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) set forth in the immediately preceding sentence, the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) may take any Major Decision or any action set forth in the Asset Status Report before the expiration of the aforementioned five (5) Business Day period if the Lead Securitization Note Holder (or Master Servicer or Special Servicer, as applicable) determines that immediate action with respect thereto is necessary to protect the interests of the Note Holders. In no event shall the Lead Securitization Note Holder (or Master Servicer or Special Servicer, acting on its behalf) be obligated at any time to follow or take any alternative actions recommended by a Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative). In addition to the consultation rights provided in the immediately preceding paragraph, each Non-Controlling Note Holder shall have the right to an annual meeting (which may be held telephonically) with the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf), upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the Mortgage Loan are discussed. (e) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that ~~the Notes~~ each Note shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of the pro rata share of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a ~~REMIC~~REMIC and another is not, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 2 contracts

Samples: Agreement Between Note Holders (JPMDB Commercial Mortgage Securities Trust 2020-Cor7), Agreement Between Note Holders (GS Mortgage Securities Trust 2020-Gc47)

Appears in 2 contracts

Samples: Co Lender Agreement (Benchmark 2019-B12 Mortgage Trust), Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2019-Cor5)

Appears in 2 contracts

Samples: Agreement Between Note Holders (CSAIL 2019-C16 Commercial Mortgage Trust), Agreement Between Note Holders (BBCMS Mortgage Trust 2019-C3)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section 5(b)) and the Lead Securitization Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the Non-Lead Securitization Notes together with the Lead Securitization Notes as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead Securitization Note together with the Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a Specially Serviced Loan without the written consent of each Non-Lead Securitization Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by such Non-Lead Securitization Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that such Non-Lead Securitization Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the Lead Securitization Servicing Agreement, each Non-Lead Securitization Note Holder (or its representative) that is not a Borrower Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the Non-Lead Securitization Notes. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, each Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the related original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell the Non-Lead Securitization Notes, and the obligations of the Non-Lead Securitization Note Holders to execute and deliver instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction ~~amount~~Amount. Appraisal Reduction ~~amounts~~ Amounts with respect to the Mortgage Loan shall be allocated, first, to the B ~~Note~~Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances), up to its respective outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance pro rata (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.

Appears in 2 contracts

Samples: Co Lender Agreement (CSAIL 2017-Cx9 Commercial Mortgage Trust), Co Lender Agreement (JPMCC Commercial Mortgage Securities Trust 2017-Jp7)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b~~5(c)) and the Lead Securitization Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder)~~ its behalf), shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or to consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no Non-Lead Securitization Note Holder shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead Securitization Servicing Agreement, no Non-Lead Securitization Note Holder shall have any right to, and each Non-Lead Securitization Note Holder ~~agrees that it shall have no right to, and~~ hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) the rights, if any, that such Note Holder has from and after the initial Securitization Date to, (i) ~~call~~ call, or cause the Lead Securitization Note Holder to ~~call~~ call, an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, ~~filing~~ filing, or causing the Lead Securitization Note Holder to ~~file~~ file, any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on ~~behalf of the Lead Securitization Note Holder~~its behalf) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). ~~Upon the Mortgage Loan becoming a Specially Serviced Loan, each Non-Lead Securitization~~ Each Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) ), upon the Mortgage Loan becoming a Defaulted Loan, to sell the ~~Non-Lead Securitization~~ Notes together ~~with the Lead Securitization Notes~~ as notes evidencing one whole loan in accordance with the terms of the Lead Securitization Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ the Notes together ~~with~~ as notes evidencing one whole loan and shall require that all offers be submitted to the ~~Lead Securitization Notes~~ Special Servicer in ~~the manner set forth in the Lead Securitization Servicing Agreement~~writing. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on its behalf) ~~will~~ shall not be permitted to sell the Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization Note Holder (~~provided that such consent is not required from any~~ unless with respect to each Non-Lead Securitization Note ~~Holder that~~ Holder, 50% or more of the related Note (or the class of securities issued in the applicable Non-Lead Securitization designated as the “controlling class” or such other class(es) otherwise assigned the rights to exercise the rights of the “Controlling Note Holder” is a held by the Mortgage Loan Borrower ~~Affiliate~~or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to each Non-Lead Securitization Note Holder: (a) at least ~~15 business days~~ fifteen (15) Business Days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 ten (10) days prior to the proposed sale date, a copy of each bid package (together with any ~~material~~ amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 ten (10) days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file reasonably~~ Servicer Mortgage File requested by such Non-Lead Securitization Note ~~Holder that are material to the price of the Mortgage Loan~~Holder; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other ~~offerors)~~ offerors and the related Lead Securitization Controlling Class Representative prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Master Servicer or the Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-Lead Securitization Note Holder may waive (only with respect to itself) any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the ~~terms of the Lead Securitization Servicing Agreement~~foregoing, each ~~Non-Lead Securitization~~ Note Holder (or its ~~representative) that is not a Borrower Affiliate~~ Note Holder Representative shall be permitted to submit an offer at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each ~~Non-~~Note Holder (to the extent it is not the same entity as the Lead Securitization Note ~~Holder~~ Holder) further agrees that, upon the request of the Lead Securitization Note Holder, ~~each Non-Lead Securitization~~ such Note Holder shall execute and deliver to or at the direction of Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original ~~Non-Lead Securitization~~ Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ any Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization Note is ~~terminated~~ repurchased by the holder of such Lead Securitization Note that sold such Lead Securitization Note into such Securitization from the trust fund established under the Lead Securitization Servicing Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by such Person with respect to the Lead Securitization Note or material document defect with respect to the documents delivered by such Person with respect to the Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the holder of the Lead Securitization Note that sold such Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Person under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Person in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning~~ Lead Securitization Servicing Agreement. The servicing of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no~~ Master Servicer ~~may modify~~and, ~~waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of~~ if the Mortgage Loan ~~Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the~~ is a Specially Serviced Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or ~~any portion thereof). Each Note Holder agrees that~~ to the ~~provisions of this paragraph shall be effected by compliance with any REMIC provisions~~ extent otherwise provided in the Lead Securitization Servicing ~~Agreement relating~~ Agreement), by the Special Servicer, in each case pursuant to the ~~administration~~ Lead Securitization Servicing Agreement. Notwithstanding anything to the contrary contained herein, in accordance with the Lead Securitization Servicing Agreement, the Lead Securitization Note Holder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each Note Holder. The Note Holders agree to be bound by the terms of the ~~Mortgage Loan~~Lead Securitization Servicing Agreement. ~~Anything herein~~ All rights and obligations of the Lead Securitization Note Holder described hereunder may be exercised by the Master Servicer, the Special Servicer, the Certificate Administrator or the Trustee on behalf of the Lead Securitization Note Holder to the extent set forth in the Lead Securitization Servicing Agreement. The Lead Securitization Servicing Agreement ~~to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder~~ shall not be ~~required to reimburse such~~ amended in any manner that may adversely affect any Non-Lead Securitization Note Holder in its capacity as Non-Lead Securitization Note Holder without such Non-Lead Securitization Note Holder’s prior written consent. Each Non-Lead Securitization Note Holder (unless it is the same Person as, or ~~any other Person for payment of (i~~is an Affiliate of, the Mortgage Loan Borrower) ~~any taxes imposed on such REMIC, (ii) any costs or expenses relating~~ shall be a third-party beneficiary to the ~~administration of such REMIC or~~ Lead Securitization Servicing Agreement with respect to ~~any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances~~ its rights as specifically provided for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficittherein. (c) ~~The Mortgage Loan~~ Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall be ~~treated as a single loan for purposes~~ required (i) to provide copies of ~~calculating~~ any notice, information and report that it is required to provide to the ~~Appraisal Reduction amount. Appraisal Reduction amounts~~ Lead Securitization Controlling Class Representative pursuant to the Lead Securitization Servicing Agreement with respect to any Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage ~~Loan shall~~ Loan, to each Non-Lead Securitization Note Holder (or its Note Holder Representative), within the same time frame it is required to provide to the Lead Securitization Controlling Class Representative (for this purpose, without regard to whether such items are actually required to be ~~allocated, first~~provided to the Lead Securitization Controlling Class Representative under the Lead Securitization Servicing Agreement due to the expiration of the related “Subordinate Control Period” (as defined under the Lead Securitization Servicing Agreement) or the “Collective Consultation Period” (as defined under the Lead Securitization Servicing Agreement)) and (ii) to use reasonable efforts to consult with each Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) on a strictly non-binding basis, to the ~~B Note~~extent having received such notices, ~~up to~~ information and reports, such Non-Controlling Note Holder (or its ~~outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d~~Non-Controlling Note Holder Representative) ~~Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss~~ requests consultation with respect to any such Major Decisions or the implementation of any recommended actions outlined in an Asset Status Report relating to the Mortgage Loan, and consider alternative actions recommended by such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to such Non-Controlling Note ~~B Principal Balance has been reduced~~ Holder (or its Non-Controlling Note Holder Representative) by the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) of written notice of a proposed action, together with copies of the notice, information and report required to ~~zero~~be provided to the Lead Securitization Controlling Class Representative, the Lead Securitization Note Holder (or the Master Servicer or the Special Servicer acting on its behalf) shall ~~reduce~~ no longer be obligated to consult with such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative), whether or not such Non-Controlling Note Holder (or its Non-Controlling Note Holder Representative) has responded within such ten (10) Business Day period (unless, the Lead Securitization Note ~~A Principal Balance pro rata~~ Holder (~~based~~ or the Master Servicer or the Special Servicer acting on ~~their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.~~its

Appears in 2 contracts

Samples: Agreement Between Note Holders (UBS Commercial Mortgage Trust 2018-C11), Agreement Between Note Holders (UBS Commercial Mortgage Trust 2018-C10)

Appears in 2 contracts

Samples: Co Lender Agreement (Benchmark 2020-Ig1 Mortgage Trust), Co Lender Agreement (Benchmark 2020-B16 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b)~~4(f) below) and the ~~Lead Securitization~~ Servicing ~~Agreement,~~ Agreement and ~~subject to~~ consistent with the ~~rights and consents, where required, of the Controlling Note Holder Representative~~Servicing Standard, the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other ~~remedy,~~ remedy and no ~~Non-Lead Securitization Note Holder~~ other Noteholder shall have any voting, consent or other rights whatsoever ~~except as explicitly set forth herein~~ with respect to the Lead Securitization ~~Note Holder~~Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage ~~Loan~~Loan except as set forth in this Agreement and the Servicing Agreement including the rights of a Subordinate Noteholder in its capacity as the Controlling Noteholder to consent to the Major Decisions set forth in this Agreement. Subject to this Agreement and the ~~Lead Securitization~~ Servicing ~~Agreement~~Agreement (including, without limitation, Section 4(f) below) and consistent with the Servicing Standard, each Non-Lead Securitization ~~Note Holder~~ Noteholder and the Subordinate Noteholder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) the rights, if any, that such ~~Note Holder~~ Non-Lead Securitization Noteholder or Subordinate Noteholder, as applicable, has to, (i) call or cause the Lead Securitization ~~Note Holder~~ Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization ~~Note Holder~~ Noteholder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall not have any fiduciary duty to any Non-Lead ~~Securitization Note Holder~~ Noteholder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization ~~Note Holder~~ Noteholder from the obligation to make any disbursement of funds as set forth ~~herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so~~herein). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead ~~Securitization Note Holder~~ Noteholder hereby acknowledges the right and obligation of the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) to sell ~~the~~ each Non-Lead ~~Securitization Notes~~ Note together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole loan in accordance with the terms of the ~~Lead Securitization~~ Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each Non-Lead ~~Securitization~~ Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the ~~Lead Securitization~~ Servicing Agreement and shall be required to require that all offers be submitted to the Trustee in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offer amount (subject to a cap of $2,500,000). Whether any cash offer constitutes a fair price for such Notes shall be determined by the Trustee; provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for such Notes, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Servicing Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the Appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for such Notes, the Trustee shall instruct the Appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Notes, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent Appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Noteholders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Noteholder) ~~will~~ shall not be permitted to sell the Non-Lead Securitization Notes if they become a Defaulted Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization ~~Note Holder~~ Noteholder (provided that such consent is not required ~~from any~~ if such Non-Lead Securitization ~~Note Holder that~~ Noteholder is a the Mortgage Loan Borrower ~~Affiliate~~or an Affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ such Non-Lead Securitization ~~Note Holder~~Noteholder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the ~~Mortgage Loan~~Non-Lead Securitization Notes; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File (as defined in the Servicing Agreement) reasonably requested by ~~such~~ the Non-Lead Securitization ~~Note Holder~~ Noteholder that are material to the price of the ~~Mortgage Loan;~~ Non-Lead Securitization Notes and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other ~~offerors~~offerors and the Controlling Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the ~~Servicer or the~~ Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-Lead Securitization ~~Note Holder~~ Noteholder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Servicing Agreement, each of the Controlling Noteholder, the Controlling Class Representative, any other Noteholder (or any controlling class representative or directing holder on its behalf under the Non-Lead Securitization Servicing Agreement~~, each~~ ) shall be permitted to bid at any sale of the Non-Lead Securitization Note ~~Holder (~~unless such Person is the Mortgage Loan Borrower or ~~its representative) that is not a Borrower~~ an agent or Affiliate ~~shall be permitted to submit an offer at any sale~~ of the Mortgage ~~Loan~~Loan Borrower. Each Non-Lead ~~Securitization Note Holder~~ Noteholder hereby appoints the Lead Securitization ~~Note Holder~~ Noteholder as its agent, and grants to the Lead Securitization ~~Note Holder~~ Noteholder an irrevocable power of attorney coupled with an interest, and ~~its~~ their proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the~~ its Non-Lead ~~Securitization Notes~~Note. Each Non-Lead ~~Securitization Note Holder~~ Noteholder further agrees that, upon the request of the Lead Securitization ~~Note Holder~~Noteholder, ~~each~~ such Non-Lead ~~Securitization Note Holder~~ Noteholder shall execute and deliver to or at the direction of Lead Securitization ~~Note Holder~~ Noteholder such powers of attorney or other instruments as the Lead Securitization ~~Note Holder~~ Noteholder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original Non-Lead ~~Securitization Note,~~ Note endorsed in blank, to or at the direction of the Lead Securitization ~~Note Holder~~ Noteholder in connection with the consummation of any such sale. The authority and obligation of the Lead Securitization ~~Note Holder~~ Noteholder to sell ~~the~~ each Non-Lead ~~Securitization Notes~~Note, and the obligations of ~~the~~ each Non-Lead ~~Securitization Note Holders~~ Noteholder to execute and deliver instruments or deliver ~~the~~ its Non-Lead ~~Securitization~~ Note upon request of the Lead Securitization ~~Note Holder~~Noteholder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which no Note is held in a Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Noteholder the benefit of any representation or warranty made by such seller or any document delivery obligation imposed on such seller under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such seller in connection with the Lead ~~Securitization is terminated in accordance with its terms~~Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as~~ Servicing Agreement. Each Noteholder agrees to be bound by the terms of the Servicing Agreement. The Lead Securitization Noteholder (or ~~as interests in~~the Servicer on its behalf) ~~a “qualified mortgage” within~~ shall service the ~~meaning~~ Mortgage Loan in accordance with the terms of ~~Section 860G(a)(3)~~ this Agreement, including without limitation, the rights of the ~~Code, (ii~~Subordinate Noteholder set forth in Section 4(f) ~~any real property (~~below and ~~related personal property) acquired by or on behalf~~ consistent with the Servicing Standard. Servicing of ~~the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on~~ the Mortgage Loan shall be ~~administered so~~ carried out by the Master Servicer and, if the Mortgage Loan is a Specially Serviced Mortgage Loan, by the Special Servicer, in each case pursuant to the Servicing Agreement and consistent with the Servicing Standard. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Lead Securitization Noteholder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan in accordance with the Servicing Standard, taking into account the interests of each of the Noteholders as a collective whole (it being understood that the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8)~~ interests of the ~~Code~~ Subordinate Noteholder is subordinate to the interests of the Note A Holders subject to the terms and conditions of this Agreement, including without limitation the rights of the Controlling Noteholder), and any Subordinate Noteholder who is not the Mortgage Loan Borrower or a Mortgage Loan Borrower Related Party shall be deemed a third party beneficiary of such provisions of the Servicing Agreement. The foregoing provisions of this Section 4(b) shall not limit or modify the rights of the Controlling Noteholder and/or the Junior Operating Advisor to exercise their respective rights specifically set forth under this Agreement. (c) Notwithstanding anything to the contrary contained herein, but subject to the terms and conditions of the Servicing Agreement and this Agreement (including, without limitation, Sections 4(f) and 5), if the Lead Securitization Noteholder in connection with a Workout of the Mortgage Loan modifies the terms thereof such that (i) the unpaid principal balance of the Mortgage Loan is decreased, (ii) the Interest Rate or scheduled amortization payments on such Mortgage Loan are reduced, (iii) ~~no Servicer may modify~~payments of interest or principal on such Mortgage Loan are waived, ~~waive~~ reduced or ~~amend~~ deferred or (iv) any ~~provision~~ other adjustment (other than an increase in the Interest Rate or increase in scheduled amortization payments) is made to any of the terms of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due all payments to the Note A Holders ~~under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan,~~ and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.Subordinate Noteholder pursuant to

Appears in 2 contracts

Samples: Agreement Between Noteholders (Morgan Stanley Capital I Trust 2019-H6), Agreement Between Noteholders (CF 2019-Cf1 Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b)~~5(f) below) and the ~~Lead Securitization~~ Servicing Agreement~~, and subject to the rights and consents, where required, of the Controlling Note Holder Representative~~, the Lead Securitization ~~Note Holder~~ Noteholder (or the ~~Master Servicer, the Special~~ Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other ~~remedy,~~ remedy and no Non-Lead Securitization ~~Note Holder~~ Noteholder shall have any voting, consent or other rights whatsoever ~~except as explicitly set forth herein~~ with respect to the Lead Securitization ~~Note Holder~~Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the ~~Lead Securitization~~ Servicing ~~Agreement~~Agreement (including, without limitation, Section 5(f) below), each ~~Non-Lead Securitization~~ of the Note A-2 Holder and the Note B Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization ~~Note Holder~~ Noteholder (or the ~~Master Servicer, the Special~~ Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) the rights, if any, that ~~such~~ the Note A-2 Holder or Note B Holder has to, (i) call or cause the Lead Securitization ~~Note Holder~~ Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization ~~Note Holder~~ Noteholder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization ~~Note Holder~~ Noteholder (or the ~~Master Servicer, the Special~~ Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall not have any fiduciary duty to ~~any Non-Lead Securitization~~ the Note A-2 Holder or the Note B Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization ~~Note Holder~~ Noteholder from the obligation to make any disbursement of funds as set forth ~~herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so~~herein). ~~Upon~~ Subject to Section 11 and Section 12 hereof, upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, ~~each~~ the Non-Lead Securitization ~~Note Holder~~ Noteholder hereby acknowledges the right and obligation of the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) to sell the Non-Lead Securitization ~~Notes~~ Note together with the Lead Securitization ~~Notes~~ Note as notes evidencing one whole ~~loan~~ A note in accordance with the terms of the ~~Lead Securitization~~ Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each~~ the Non-Lead Securitization Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the ~~Lead Securitization~~ Servicing Agreement and shall be required to require that all offers be submitted to the Trustee in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offer amount (subject to a cap of $2,500,000). Whether any cash offer constitutes a fair price for the Note A-1 and Note A-2 shall be determined by the Trustee; provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for the Note A-1 and Note A-2, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Servicing Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the Appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for the Note A-1 and Note A-2, the Trustee shall instruct the Appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Note A-1 and Note A-2, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Holders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Noteholder) ~~will~~ shall not be permitted to sell the Note A-1 and Note A-2 if they become a Defaulted Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of ~~each~~ the Non-~~Lead Securitization Note Holder~~ Controlling Pari Passu Noteholder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization Note Holder that~~ Controlling Pari Passu Noteholder is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ the Non-~~Lead Securitization Note Holder~~Controlling Pari Passu Noteholder: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the ~~Mortgage Loan~~Note A-1 and Note A-2; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by ~~such~~ the Non-~~Lead Securitization Note Holder~~ Controlling Pari Passu Noteholder that are material to the price of the ~~Mortgage Loan;~~ Note A-1 and Note A-2 and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other ~~offerors~~offerors and the Controlling Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by ~~the Servicer or the Special~~ and Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization Note Holder~~ Controlling Pari Passu Noteholder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Servicing Agreement, each of the Controlling Noteholder, the Controlling Class Representative, the Note B Holder, the Non-Controlling Noteholder (or any controlling class representative or directing holder on its behalf under the Non-Lead Securitization Servicing Agreement~~, each Non-Lead Securitization Note Holder (or its representative~~) ~~that is not a Borrower Affiliate~~ shall be permitted to ~~submit an offer~~ bid at any sale of the Note A-1 and Note A-2 unless such Person is the Mortgage ~~Loan~~Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. ~~Each~~ The Non-Lead Securitization ~~Note Holder~~ Noteholder hereby appoints the Lead Securitization ~~Note Holder~~ Noteholder as its agent, and grants to the Lead Securitization ~~Note Holder~~ Noteholder an irrevocable power of attorney coupled with an interest, and ~~its~~ their proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the~~ Non-Lead Securitization ~~Notes~~Note. ~~Each~~ The Non-Lead Securitization ~~Note Holder~~ Noteholder further agrees that, upon the request of the Lead Securitization ~~Note Holder~~Noteholder, ~~each~~ the Non-Lead Securitization ~~Note Holder~~ Noteholder shall execute and deliver to or at the direction of Lead Securitization ~~Note Holder~~ Noteholder such powers of attorney or other instruments as the Lead Securitization ~~Note Holder~~ Noteholder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the ~~related~~ original Non-Lead Securitization ~~Note,~~ Note endorsed in blank, to or at the direction of the Lead Securitization ~~Note Holder~~ Noteholder in connection with the consummation of any such sale. The authority of the Lead Securitization ~~Note Holder~~ Noteholder to sell the Non-Lead Securitization ~~Notes~~Note, and the obligations of the Non-Lead Securitization ~~Note Holders~~ Noteholder to execute and ~~deliver~~ delivery instruments or deliver the Non-Lead Securitization Note upon request of the Lead Securitization ~~Note Holder~~Noteholder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which Lead Securitization Note is repurchased by the Initial Note A-1 Holder from the trust fund established under the Lead Securitization ~~is terminated~~ Agreement in ~~accordance~~ connection with ~~its terms~~a material breach of representation or warranty made by the Initial Note A-1 Holder with respect to Lead Securitization Note or material document defect with respect to the documents delivered by the Initial Note A-1 Holder with respect to Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to the Non-Lead Securitization Noteholder the benefit of any representation or warranty made by the Initial Note A-1 Holder or any document delivery obligation imposed on the Initial Note A-1 Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by the Initial Note A-1 Holder in connection with the Lead Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as~~ Servicing Agreement. The Note B Holder agrees to be bound by the terms of the Servicing Agreement. The Lead Securitization Noteholder (or ~~as interests in~~the Servicer on its behalf) ~~a “qualified mortgage” within~~ shall service the ~~meaning~~ Mortgage Loan in accordance with the terms of ~~Section 860G(a)(3) of~~ this Agreement, including without limitation, the ~~Code, (ii) any real property (and related personal property) acquired by or on behalf~~ rights of the Note ~~Holders pursuant to a foreclosure, exercise~~ B Holder set forth in Section 5(f) below. Servicing of ~~a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on~~ the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within~~ Master Servicer and, if the ~~meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the~~ Mortgage Loan is a Specially Serviced Mortgage Loan, ~~consent to or withhold consent from any action of~~ by the ~~Mortgage Loan Borrower~~Special Servicer, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each ~~case, not below zero) by any Realized Loss with respect~~ case pursuant to ~~the Mortgage Loan.~~the

Appears in 2 contracts

Samples: Agreement Between Noteholders (GS Mortgage Securities Trust 2016-Gs3), Agreement Between Noteholders (Gs Mortgage Securities Corp Ii)

Administration of the Mortgage Loan. ~~(a)~~ Subject to this Agreement (including but not limited to Section ~~5(b~~5(c)) and the Lead ~~Securitization~~ Servicing ~~Agreement,~~ Agreement and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and no the Non-Lead Securitization Note ~~Holder~~ Holders shall have ~~any~~ no voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the Lead Securitization Note Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the Lead ~~Securitization~~ Servicing Agreement, each Non-Lead Securitization Note Holder agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) the rights, if any, that such Note Holder has to, (i) call or cause the Lead Securitization Note Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the Lead Securitization Note Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The Lead Securitization Note Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the Lead Securitization Note Holder) shall not have any fiduciary duty to any Non-Lead Securitization Note Holder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization Note Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead Securitization Note Holder hereby acknowledges the right and obligation of the Lead Securitization Note Holder (or the Special Servicer acting on behalf of the Lead Securitization Note Holder) to sell the ~~Non-Lead Securitization Notes together with the Lead Securitization~~ Notes as notes evidencing one whole loan in accordance with the terms of the Lead ~~Securitization~~ Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell ~~each Non-Lead Securitization Note~~ the Notes together ~~with~~ in such manner as will be reasonably likely to realize a fair price. Subject to the ~~Lead Securitization Notes in~~ other provisions of this paragraph and the ~~manner set forth in~~ two following paragraphs and the applicable provisions of the Lead Securitization Servicing Agreement, the Special Servicer shall accept the first (and, if multiple offers are contemporaneously received, the highest) cash offer received from any Person that constitutes a fair price for such Defaulted Mortgage Loan. The Special Servicer shall notify the Controlling Note Holder Representative and each Non-Controlling Note Holder Representative of any inquiries or offers received regarding the sale of such Defaulted Mortgage Loan. Whether any cash offer constitutes a fair price for the Mortgage Loan shall be determined by the Special Servicer, if the highest offeror is a Person other than an Interested Person, and by the Trustee, if the highest offeror is an Interested Person (provided that the Trustee may not be an offeror) unless (i) the offer is equal to or greater than the applicable Purchase Price, (ii) the offer is the highest offer received and (iii) at least two other offers are received from independent third parties; provided, however, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two other offers are received from independent third parties. In all cases under this Agreement (except to the extent the Trustee is not required to determine whether any cash offer constitutes a fair price for the Mortgage Loan pursuant to the immediately preceding sentence), in determining whether any offer received from an Interested Person represents a fair price for the Mortgage Loan, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Lead Securitization Servicing Agreement within the preceding 9-month period or, in the absence of any such Appraisal, on a new Appraisal. The appraiser conducting any such new Appraisal shall be an Appraiser selected by (i) the Special Servicer if no Interested Person is making an offer with respect to the Mortgage Loan and (ii) the Trustee if an Interested Person is so making an offer. The cost of any such Appraisal shall be covered by, and shall be reimbursable as, a Property Advance. In determining whether any such offer from a Person other than an Interested Person constitutes a fair price for the Mortgage Loan, the Special Servicer shall take into account (in addition to the results of any Appraisal, updated Appraisal or narrative Appraisal that it may have obtained pursuant to the Lead Securitization Servicing Agreement within the prior 9 months), and in determining whether any offer from an Interested Person constitutes a fair price for the Mortgage Loan, any Appraiser shall be instructed to take into account, as applicable, among other factors, the period and amount of any delinquency on the Mortgage Loan, the occupancy level and physical condition of the related Mortgaged Property and the state of the local economy. The Purchase Price for the Mortgage Loan shall in all cases be deemed a fair price; provided, however, that with respect to Interested Parties, the requirements of the first sentence of this paragraph must be satisfied. Notwithstanding anything contained in this paragraph to the contrary, if the Trustee is required to determine whether a cash offer by an Interested Person constitutes a fair price, the Trustee may (at its option and at the expense of the Interested Person) designate an independent third party expert in real estate or commercial mortgage loan matters with at least 5 years’ experience in valuing or investing in loans similar to the Mortgage Loan that has been selected with reasonable care by the Trustee to determine if such cash offer constitutes a fair price for the Mortgage Loan. If the Trustee designates such a third party to make such determination, the Trustee will be entitled to rely conclusively upon such third party’s determination. The reasonable costs of all appraisals, inspection reports and broker opinions of value incurred by any such third party pursuant to this paragraph will be covered by, and will be reimbursable by the Interested Person; provided that the Trustee will not engage a third party expert whose fees exceed a commercially reasonable amount as determined by the Trustee. Notwithstanding the foregoing, the Lead Securitization Note Holder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Note Holder) ~~will~~ shall not be permitted to sell the Mortgage Loan if ~~the Mortgage Loan~~ it becomes a ~~Specially Serviced~~ Defaulted Mortgage Loan without the written consent of each Non-~~Lead Securitization~~ Controlling Note Holder (provided that such consent is not required ~~from any~~ if the Non-~~Lead Securitization~~ Controlling Note Holder ~~that~~ is a the Mortgage Loan Borrower ~~Affiliate~~or an affiliate of the Mortgage Loan Borrower) unless the Special Servicer has delivered to ~~each~~ the Non-~~Lead Securitization~~ Controlling Note ~~Holder~~Holders: (a) at least 15 ~~business days~~ Business Days’ prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the ~~servicing file~~ Servicing File reasonably requested by ~~such~~ the Non-~~Lead Securitization~~ Controlling Note Holder that are material to the price of the Mortgage ~~Loan;~~ Loan and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other ~~offerors~~offerors and the Lead Securitization Subordinate Class Representative) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer ~~or the Special Servicer~~ in connection with the proposed sale; ~~provided~~ provided, that such Non-~~Lead Securitization~~ Controlling Note Holder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Lead ~~Securitization~~ Servicing Agreement, each of the Controlling Note Holder, the Controlling Note Holder Representative, the Non-~~Lead Securitization~~ Controlling Note Holder ~~(or its representative) that is not a Borrower Affiliate~~ and the Non-Controlling Note Holder Representative shall be permitted to ~~submit an offer~~ bid at any sale of the Mortgage ~~Loan~~Loan unless such Person is the Mortgage Loan Borrower or an agent or Affiliate of the Mortgage Loan Borrower. Each Non-Lead Securitization Note Holder hereby appoints the Lead Securitization Note Holder as its agent, and grants to the Lead Securitization Note Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the Non-Lead Securitization Notes~~its Note. Each Non-Lead Securitization Note Holder further agrees that, upon the request of the Lead Securitization Note Holder, ~~each~~ such Non-Lead Securitization Note Holder shall execute and deliver to or at the direction of the Lead Securitization Note Holder such powers of attorney or other instruments as the Lead Securitization Note Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver the ~~related~~ original Non-Lead Securitization Note, endorsed in blank, to or at the direction of the Lead Securitization Note Holder in connection with the consummation of any such sale. The authority of the Lead Securitization Note Holder to sell ~~the~~ a Non-Lead Securitization ~~Notes~~Note, and the obligations of ~~the Non-Lead Securitization~~ any other Note ~~Holders~~ Holder to execute and deliver instruments or deliver the ~~Non-Lead Securitization~~ related Note upon request of the Lead Securitization Note Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the Lead Securitization ~~is terminated in accordance with its terms. (b) If any~~ Note is included as an asset of a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired repurchased by ~~or on behalf of~~ the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so Holder that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in sold the Lead Securitization ~~Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in~~ Note into the Lead Securitization from the trust fund established under the Lead Servicing Agreement ~~to the contrary notwithstanding, if one~~ in connection with a material breach of ~~the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse~~ representation or warranty made by such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest Lead Securitization Note or ~~principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss~~ material document defect with respect to the ~~Mortgage Loan, and after the~~ documents delivered by such Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss Holder with respect to the ~~Mortgage Loan~~Lead Securitization Note upon the consummation of the Lead Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Securitization Note Holder the benefit of any representation or warranty made by the Note Holder that sold the Lead Securitization Note into the Lead Securitization or any document delivery obligation imposed on such Note Holder under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such Note Holder in connection with the Lead Securitization.

Appears in 2 contracts

Samples: Co Lender Agreement (BBCMS Mortgage Trust 2022-C15), Co Lender Agreement (Morgan Stanley Capital I Trust 2022-L8)

Administration of the Mortgage Loan. (a) Subject to this Agreement (including but not limited to Section ~~5(b~~6(c)) and the ~~Lead Securitization~~ Servicing Agreement, and subject to the rights and consents, where required, of the Controlling Note Holder Representative, the ~~Lead Securitization~~ Note A-A Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the ~~Lead Securitization~~ Note A-A Holder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the Mortgage Loan Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other remedy, and ~~no Non~~none of the Note A-~~Lead Securitization~~ B Holder or the Note ~~Holder~~ B Holders shall have any voting, consent or other rights whatsoever except as explicitly set forth herein with respect to the ~~Lead Securitization~~ Note A-A Holder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage Loan. Subject to this Agreement and the ~~Lead Securitization~~ Servicing Agreement, each ~~Non~~of the Note A-~~Lead Securitization~~ B Holder and the Note ~~Holder agrees~~ B Holders agree that it they shall have no right to, and hereby presently and irrevocably assigns and conveys to the ~~Lead Securitization~~ Note A-A Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the ~~Lead Securitization~~ Note A-A Holder) the rights, if any, that such Note Holder has to, (i) call or cause the ~~Lead Securitization~~ Note A-A Holder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the Mortgage Loan Borrower, including, without limitation, filing or causing the ~~Lead Securitization~~ Note A-A Holder to file any bankruptcy petition against the Mortgage Loan Borrower. The ~~Lead Securitization~~ Note A-A Holder (or the Master Servicer, the Special Servicer or the Trustee acting on behalf of the ~~Lead Securitization~~ Note A-A Holder) shall not have any fiduciary duty to any ~~Non~~Note A-~~Lead Securitization~~ B Holder or any Note ~~Holder~~ B Holders in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the ~~Lead Securitization~~ Note A-A Holder from the obligation to make any disbursement of funds as set forth herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Loan, each ~~Non~~of the Note A-~~Lead Securitization~~ B Holder and the Note ~~Holder~~ B Holders hereby acknowledges the right and obligation of the ~~Lead Securitization~~ Note A-A Holder (or the Special Servicer acting on behalf of the ~~Lead Securitization~~ Note A-A Holder) to sell the ~~Non~~Note A-~~Lead Securitization Notes~~ B, Note B-A and Note B-B together with the ~~Lead Securitization Notes~~ Note A-A as notes evidencing one whole loan in accordance with the terms of the ~~Lead Securitization~~ Servicing Agreement~~. In connection with any such sale~~, subject to: (1) the ~~Special Servicer shall be required to sell each Non-Lead Securitization Note together with~~ consent rights of the ~~Lead Securitization Notes in the manner set forth in the Lead Securitization Servicing Agreement. Notwithstanding the foregoing, the Lead Securitization~~ Controlling Note Holder pursuant to Section 6(c) and (~~or the Special Servicer acting on its behalf~~2) ~~will not be permitted to sell the Mortgage Loan if the Mortgage Loan becomes a Specially Serviced Loan without~~ the written consent of the holder of each ~~Non-Lead~~ other Note included in the Securitization ~~Note Holder (provided that such consent is not required from any Non-Lead Securitization Note Holder that is a Borrower Affiliate)~~ unless the Special Servicer has delivered to each ~~Non-Lead Securitization~~ such Note Holder: (a) at least 15 business days prior written notice of any decision to attempt to sell the Mortgage Loan; (b) at least 10 days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; (c) at least 10 days prior to the proposed sale date, a copy of the most recent appraisal for the Mortgage Loan, and any documents in the servicing file reasonably requested by ~~such Non-Lead Securitization~~ the applicable Note Holder that are material to the price of the Mortgage Loan; and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to other offerors) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the Servicer or the Special Servicer in connection with the proposed sale; provided that ~~such Non-Lead Securitization~~ the applicable Note Holder may waive any of the delivery or timing requirements described in this sentence. Subject to the terms of the ~~Lead Securitization~~ Servicing Agreement, each ~~Non~~Appraised-~~Lead Securitization Note~~ Out Holder ~~(or its representative)~~ that is not a Mortgage Loan Borrower ~~Affiliate~~ Related Party shall be permitted to submit an offer at any sale of the Mortgage Loan. In connection with any such sale, the Special Servicer shall be required to sell the Note B-A and Note B-B together with the Note A-A and Note A-B in the manner set forth in the Servicing Agreement. Each ~~Non~~of the Note A-~~Lead Securitization~~ B Holder and the Note ~~Holder~~ B Holders hereby appoints the ~~Lead Securitization~~ Note A-A Holder as its agent, and grants to the ~~Lead Securitization~~ Note A-A Holder an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of soliciting and accepting offers for and consummating the sale of the ~~Non~~Note A-~~Lead Securitization Notes.~~ B, Note B-A and Note B-B. Each ~~Non~~of the Note A-~~Lead Securitization~~ B Holder and the Note ~~Holder~~ B Holders further agrees that, upon the request of the ~~Lead Securitization~~ Note A-A Holder, ~~each Non-Lead Securitization Note Holder~~ it shall execute and deliver to or at the direction of ~~Lead Securitization~~ Senior Note Holder such powers of attorney or other instruments as the ~~Lead Securitization~~ Note A-A Holder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related original Non~~originals of each of the, Note A-~~Lead Securitization Note~~B, Note B-A and Note B-B, endorsed in blank, to or at the direction of the ~~Lead Securitization~~ Note A-A Holder in connection with the consummation of any such sale. The authority of the ~~Lead Securitization~~ Note A-A Holder to sell the ~~Non~~Note A-~~Lead Securitization Notes~~B, Note B-A and Note B-B, and the obligations of each of the ~~Non~~Note A-~~Lead Securitization~~ B Holder and the Note B Holders to execute and deliver instruments or deliver each of the ~~Non~~Note A-~~Lead Securitization~~ B, Note B-A and Note B-B upon request of the ~~Lead Securitization~~ Note A-A Holder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which the ~~Lead~~ Securitization is terminated in accordance with its terms. (b) If any Note is included as an asset of a real estate mortgage investment conduit (a “REMIC”), within the meaning of Section 860D(a) of the ~~Code (a “REMIC”)~~Code, then, any provision of this Agreement to the contrary notwithstanding: (i) the Mortgage Loan shall be administered such that the Notes shall qualify at all times as (or as interests in) a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, (ii) any real property (and related personal property) acquired by or on behalf of the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on the Mortgage Loan shall be administered so that the interest of each Note Holder therein shall at all times qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the Mortgage Loan, consent to or withhold consent from any action of the Mortgage Loan Borrower, or exercise or refrain from exercising any powers or rights which the Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification” of the Mortgage Loan, within the meaning of Section 1.860G-2(b) of the regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof). Each Note Holder agrees that the provisions of this paragraph shall be effected by compliance with any REMIC provisions in the ~~Lead Securitization~~ Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the ~~Lead Securitization~~ Servicing Agreement to the contrary notwithstanding, if in the event that one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction ~~amount~~Amount. Appraisal Reduction ~~amounts~~ Amounts with respect to the Mortgage Loan shall be allocated, first, to the Note B-B ~~Note~~up to its outstanding principal balance, second, to the Note B-A up to its outstanding principal balance, third, to the Note A-B up to its outstanding principal balance, and then to the Note A-A ~~Notes on a pro rata and pari passu basis~~ (based on their relative outstanding principal balances). (di) ~~Prior~~ If the Note B-B Holder, the Note X-X Xxxxxx or the Note A-B Holder, as applicable, is determined at any time of determination to ~~calculating any amount~~ no longer be the Controlling Note Holder (the “Appraised-Out Holder”) as a result of ~~interest or principal due~~ the application of an Appraisal Reduction Amount, such Note Holder shall have the right, at its sole expense, to require the Special Servicer to order a second Appraisal with respect to the Mortgage Loan. The Special Servicer shall use its reasonable efforts to cause such second Appraisal to be (A) delivered within thirty (30) days from receipt of the Appraised-Out Holder’s written request and (B) prepared on an “as-is” basis by an MAI appraiser (provided that such MAI appraiser may not be the same MAI appraiser that provided the Appraisal in respect of which the Appraised-Out Holder is requesting the Special Servicer to obtain an additional Appraisal). (ii) Upon receipt of any supplemental Appraisal pursuant to clause (i) above, the Special Servicer shall determine, in accordance with the Servicing Standard, whether, based on its assessment of such supplemental Appraisal, any recalculation of the Appraisal Reduction Amount is warranted, and if so warranted, the Special Servicer shall recalculate the Appraisal Reduction Amount based on such supplemental Appraisal and any information received from the Master Servicer. If required by such recalculation, the Appraised-Out Holder shall be reinstated as the Controlling Note ~~Holders under Section 3 hereof~~Holder and, if applicable, shall have its Note Principal Balance notionally restored to the extent required by such recalculation of the Appraisal Reduction Amount. The Appraised-Out Holder requesting any supplemental Appraisal pursuant to clause (i) above shall refrain from exercising any direction, control, consent and/or similar rights of the Controlling Note Holder until such time, if any, as the holder is reinstated as the Controlling Note Holder (such period beginning upon receipt by the Special Servicer of any request to obtain a supplemental Appraisal pursuant to clause (i) above to but excluding the date on which either (A) the Special Servicer determines that no recalculation of the Appraisal Reduction Amount is warranted or (B) the Special Servicer recalculates the Appraisal Reduction Amount based on the supplemental Appraisal, the “Appraisal Review Period”). The rights of the Controlling Note Holder during each Appraisal Review Period shall be exercised by the Note A-B Holder. (e) Each Note B Holder shall be entitled to avoid a Control Appraisal Period caused by application of an Appraisal Reduction Amount upon satisfaction of the following (which must be completed within thirty (30) days of the receipt of a third party Appraisal that indicates such Control Appraisal Period has occurred): (i) such Note Holder shall have delivered as a supplement to the Appraised Value of the Mortgaged Property, in the amount specified in clause (ii) below, to the Servicer, together with documentation acceptable to the Servicer in accordance with the Servicing Standard to create and perfect a first priority security interest in favor of the Note A-A Holder and Note A-B Holder (and the Note X-X Xxxxxx, if the Note B-B Holder is the Note Holder making such delivery to the Servicer) in such collateral (a) cash collateral for the benefit of the Note A-B and the Note A-A (and the Note B-A, if the Note B-B Holder is the Note Holder making such delivery), and acceptable to, the Servicer or (b) an unconditional and irrevocable standby letter of credit with the Note A-A Holder and the Note A-B Holder (and the Note X-X Xxxxxx, if the Note B-B Holder is the Note Holder delivery such letter of credit) as the beneficiary, issued by a bank or other financial institutions the long term unsecured debt obligations of which are at all times rated at least “AA” by S&P, “A” by Fitch and “Aa2” by Xxxxx’x or the short term obligations of which are rated at least “A-1+” by S&P, “F-1” by Fitch and “P-1” by Xxxxx’x (either (a) or (b), the “Threshold Event Collateral”), and (ii) the Threshold Event Collateral shall be in an amount which, when added to the Appraised Value of the Mortgaged Property as determined pursuant to the Servicing Agreement, would cause the applicable Control Appraisal Period not to occur. If the requirements of this paragraph are satisfied by a Note B Holder (a “Threshold Event Cure”), no Control Appraisal Period caused by application of an Appraisal Reduction Amount shall be deemed to have occurred. If a letter of credit is furnished as Threshold Event Collateral, the applicable Note B Holder shall be required to renew such letter of credit not later than thirty (30) days prior to expiration thereof or to replace such letter of credit with a substitute letter of credit or other Threshold Event Collateral with an expiration date that is greater than forty-five (45) days from the date of substitution; provided, however, that, if a letter of credit is not renewed prior to thirty (30) days prior to the expiration date of such letter of credit, the letter of credit shall provide that the Servicer may (and at the direction of the applicable Note B Holder shall) draw upon such letter of credit and hold the proceeds thereof as Threshold Event Collateral. If a letter of credit is furnished as Threshold Event Collateral, the applicable Note B Holder shall be required to replace such letter of credit with other Threshold Event Collateral within thirty (30) days if the credit ratings of the issuing entity are downgraded below the required ratings; provided, however, that, if such Threshold Event Collateral is not so replaced, the Servicer shall ~~reduce~~ draw upon such letter of credit and hold the proceeds thereof as Threshold Event Collateral. The Threshold Event Cure shall continue until (i) the Appraised Value of the Mortgaged Property plus the value of the Threshold Event Collateral would not be sufficient to prevent a Control Appraisal Period from occurring; or (ii) final liquidation of the Mortgage Loan or REO Property. If the Appraised Value of the Mortgaged Property, upon any redetermination thereof, is sufficient to avoid the occurrence of a Control Appraisal Period without taking into consideration any, or some portion of, Threshold Event Collateral previously delivered by such Note B ~~Principal Balance~~ Holder any or such portion of Threshold Event Collateral held by the Servicer shall promptly be returned to the applicable Note B Holder (~~not below zero) by any Realized Loss~~ at its sole expense). Upon final liquidation or repayment of the Mortgage Loan or REO Property with respect to the Mortgage Loan, ~~and after the~~ such Threshold Event Collateral shall be available to reimburse each Note ~~B Principal Balance has been reduced~~ Holder for any realized loss pursuant to ~~zero~~Section 3 or 4, ~~the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case~~as applicable, ~~not below zero) by any Realized Loss~~ with respect to the Mortgage ~~Loan~~Loan after application of the net proceeds of liquidation, not in excess of the Note Principal Balances of the Notes, plus accrued and unpaid interest thereon at the applicable interest rate and all other expenses reimbursable under this Agreement and under the Servicing Agreement. The entire amount of Threshold Event Collateral, without a haircut or other reduction, shall be considered in determining the sufficiency of such Threshold Event Collateral to avoid a Control Appraisal Period.

Appears in 2 contracts

Samples: Co Lender Agreement (CSAIL 2017-Cx10 Commercial Mortgage Trust), Co Lender Agreement (CSAIL 2017-Cx10 Commercial Mortgage Trust)

Administration of the Mortgage Loan. (a) Subject to this Agreement (~~including but not limited to~~ including, without limitation, Section ~~5(b)~~4(f) below) and the ~~Lead Securitization~~ Servicing ~~Agreement,~~ Agreement and ~~subject to~~ consistent with the ~~rights and consents, where required, of the Controlling Note Holder Representative~~Accepted Servicing Practices, the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall have the sole and exclusive authority with respect to the administration of, and exercise of rights and remedies with respect to, the Mortgage Loan, including, without limitation, the sole authority to modify or waive any of the terms of the Mortgage Loan Documents or consent to any action or failure to act by the ~~Mortgage Loan~~ Borrower or any other party to the Mortgage Loan Documents, call or waive any Event of Default, accelerate the Mortgage Loan or institute any foreclosure action or other ~~remedy,~~ remedy and no ~~Non-Lead Securitization Note Holder~~ other Noteholder shall have any voting, consent or other rights whatsoever ~~except as explicitly set forth herein~~ with respect to the Lead Securitization ~~Note Holder~~Noteholder’s administration of, or exercise of its rights and remedies with respect to, the Mortgage ~~Loan~~Loan except as set forth in this Agreement and the Servicing Agreement including the rights of any Noteholder in its capacity as the Controlling Noteholder to consent to the Major Decisions set forth in this Agreement. Subject to this Agreement and the Servicing Agreement (including, without limitation, Section 4(f) below) and consistent with the Accepted Servicing Practices, each Noteholder (other than the Lead Securitization ~~Servicing Agreement, each Non-Lead Securitization Note Holder~~ Noteholder) agrees that it shall have no right to, and hereby presently and irrevocably assigns and conveys to the Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) the rights, if any, that such ~~Note Holder~~ Noteholder has to, (i) call or cause the Lead Securitization ~~Note Holder~~ Noteholder to call an Event of Default under the Mortgage Loan, or (ii) exercise any remedies with respect to the Mortgage Loan or the ~~Mortgage Loan~~ Borrower, including, without limitation, filing or causing the Lead Securitization ~~Note Holder~~ Noteholder to file any bankruptcy petition against the ~~Mortgage Loan~~ Borrower. The Lead Securitization ~~Note Holder~~ Noteholder (or ~~the Master Servicer, the Special~~ any Servicer ~~or the Trustee~~ acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) shall not have any fiduciary duty to any Non-Lead ~~Securitization Note Holder~~ Noteholder in connection with the administration of the Mortgage Loan (but the foregoing shall not relieve the Lead Securitization ~~Note Holder~~ Noteholder from the obligation to make any disbursement of funds as set forth ~~herein or its obligation to follow the Servicing Standard (in the case of the Master Servicer or the Special Servicer) or any liability for failure to do so~~herein). Upon the Mortgage Loan becoming a ~~Specially Serviced~~ Defaulted Mortgage Loan, each Non-Lead ~~Securitization Note Holder~~ Noteholder hereby acknowledges the right and obligation of the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on behalf of the Lead Securitization ~~Note Holder~~Noteholder) to sell ~~the~~ each Non-Lead ~~Securitization Notes~~ Note together with the Lead Securitization Note (and any other Notes included in the Lead Securitization) as notes evidencing one whole loan in accordance with the terms of the ~~Lead Securitization~~ Servicing Agreement. In connection with any such sale, the Special Servicer shall be required to sell each ~~Non-Lead Securitization~~ Note together with the Lead Securitization ~~Notes~~ Note in the manner set forth in the ~~Lead Securitization~~ Servicing Agreement and shall be required to require that all offers be submitted to the Trustee in writing and be accompanied by a refundable deposit of cash in an amount equal to 5% of the offer amount (subject to a cap of $2,500,000). Whether any cash offer constitutes a fair price for such Notes shall be determined by the Trustee; provided, that no offer from an Interested Person shall constitute a fair price unless (i) it is the highest offer received and (ii) at least two bona fide other offers are received from independent third parties. In determining whether any offer received represents a fair price for such Notes, the Trustee shall be supplied with and shall rely on the most recent Appraisal or updated Appraisal conducted in accordance with the Servicing Agreement within the preceding nine (9) month period or, in the absence of any such Appraisal, on a new Appraisal. The Trustee shall select the Appraiser conducting any such new Appraisal. In determining whether any such offer constitutes a fair price for such Notes, the Trustee shall instruct the Appraiser to take into account (in addition to the results of any Appraisal or updated Appraisal that it may have obtained pursuant to the Servicing Agreement), as applicable, among other factors, the period and amount of any delinquency on the affected Notes, the occupancy level and physical condition of the related Property and the state of the local economy. The Trustee may conclusively rely on the opinion of an Independent Appraiser or other Independent expert in real estate matters retained by the Trustee at the expense of the Noteholders in connection with making such determination. Notwithstanding the foregoing, the Lead Securitization ~~Note Holder~~ Noteholder (or the Special Servicer acting on ~~its behalf~~behalf of the Lead Securitization Noteholder) ~~will~~ shall not be permitted to sell the Non-Lead Securitization Notes if they become a Defaulted Mortgage ~~Loan if the Mortgage Loan becomes a Specially Serviced~~ Loan without the written consent of each Non-Lead Securitization ~~Note Holder~~ Noteholder (provided that such consent is not required ~~from any~~ if such Non-Lead Securitization ~~Note Holder that~~ Noteholder is a Borrower ~~Affiliate~~Restricted Party) unless the Special Servicer has delivered to ~~each~~ such Non-Lead Securitization ~~Note Holder~~Noteholder: (a) at least ~~15 business days~~ fifteen (15) Business Days’ prior written notice of any decision to attempt to sell the ~~Mortgage Loan~~Non-Lead Securitization Notes; (b) at least 10 ten (10) days prior to the proposed sale date, a copy of each bid package (together with any material amendments to such bid packages) received by the Special Servicer in connection with any such proposed sale; , (c) at least 10 ten (10) days prior to the proposed sale date, a copy of the most recent ~~appraisal~~ Appraisal for the Mortgage Loan, and any documents in the servicing file maintained by the Master Servicer and/or Special Servicer with respect to the Mortgage Loan reasonably requested by such Non-Lead Securitization ~~Note Holder~~ Noteholder that are material to the price of the ~~Mortgage Loan;~~ Non-Lead Securitization Notes and (d) until the sale is completed, and a reasonable period of time (but no less time than is afforded to the other ~~offerors~~offerors and the Controlling Noteholder) prior to the proposed sale date, all information and other documents being provided to other offerors and all leases or other documents that are approved by the ~~Servicer or the~~ Special Servicer in connection with the proposed sale; ~~provided~~ provided, that such Non-Lead Securitization ~~Note Holder~~ Noteholder may waive any of the delivery or timing requirements ~~described~~ set forth in this sentence. Subject to the terms of the Servicing Agreement, each of the Controlling Noteholder, the Controlling Class Representative, any other Noteholder (or any controlling class representative or directing holder on its behalf under the Non-Lead Securitization Servicing Agreement~~, each~~ ) shall be permitted to bid at any sale of the Non-Lead Securitization Note ~~Holder (or its representative) that~~ unless such Person is ~~not~~ a Borrower ~~Affiliate shall be permitted to submit an offer at any sale of the Mortgage Loan~~Restricted Party. Each Non-Lead ~~Securitization Note Holder~~ Noteholder hereby appoints the Lead Securitization ~~Note Holder~~ Noteholder as its agent, and grants to the Lead Securitization ~~Note Holder~~ Noteholder an irrevocable power of attorney coupled with an interest, and ~~its~~ their proxy, for the purpose of soliciting and accepting offers for and consummating the sale of ~~the~~ its Non-Lead ~~Securitization Notes~~Note. Each Non-Lead ~~Securitization Note Holder~~ Noteholder further agrees that, upon the request of the Lead Securitization ~~Note Holder~~Noteholder, ~~each~~ such Non-Lead ~~Securitization Note Holder~~ Noteholder shall execute and deliver to or at the direction of Lead Securitization ~~Note Holder~~ Noteholder such powers of attorney or other instruments as the Lead Securitization ~~Note Holder~~ Noteholder may reasonably request to better assure and evidence the foregoing appointment and grant, in each case promptly following request, and shall deliver ~~the related~~ its original Non-Lead ~~Securitization Note,~~ Note endorsed in blank, to or at the direction of the Lead Securitization ~~Note Holder~~ Noteholder in connection with the consummation of any such sale. The authority and obligation of the Lead Securitization ~~Note Holder~~ Noteholder to sell ~~the~~ each Non-Lead ~~Securitization Notes~~Note, and the obligations of ~~the~~ each Non-Lead ~~Securitization Note Holders~~ Noteholder to execute and deliver instruments or deliver ~~the~~ its Non-Lead ~~Securitization~~ Note upon request of the Lead Securitization ~~Note Holder~~Noteholder, shall terminate and cease to be of any further force or effect upon the date, if any, upon which no Note is held in a Securitization. The preceding sentence shall not be construed to grant to any Non-Lead Noteholder the benefit of any representation or warranty made by such seller or any document delivery obligation imposed on such seller under any mortgage loan purchase and sale agreement, instrument of transfer or other document or instrument that may be executed or delivered by such seller in connection with the Lead ~~Securitization is terminated in accordance with its terms~~Securitization. (b) ~~If any Note is included as an asset~~ The administration of ~~a real estate mortgage investment conduit within the meaning of Section 860D(a) of the Code (a “REMIC”), then, any provision of this Agreement to the contrary notwithstanding: (i)~~ the Mortgage Loan shall be ~~administered such that~~ governed by this Agreement and the ~~Notes shall qualify at all times as~~ Servicing Agreement. Each Noteholder agrees to be bound by the terms of the Servicing Agreement. The Lead Securitization Noteholder (or ~~as interests in~~the Master Servicer on its behalf) ~~a “qualified mortgage” within~~ shall service the ~~meaning~~ Mortgage Loan in accordance with the terms of ~~Section 860G(a)(3)~~ this Agreement, including without limitation, the rights of the ~~Code, (ii~~Controlling Noteholder set forth in Section 4(f) ~~any real property (~~below and ~~related personal property) acquired by or on behalf~~ consistent with the Accepted Servicing Practices. Servicing of ~~the Note Holders pursuant to a foreclosure, exercise of a power of sale or delivery of a deed in lieu of foreclosure of the Mortgage or lien on such property following a default on~~ the Mortgage Loan shall be ~~administered so that~~ carried out by the ~~interest of each Note Holder therein shall at all times qualify as “foreclosure property” within~~ Master Servicer and, if the ~~meaning of Section 860G(a)(8) of the Code and (iii) no Servicer may modify, waive or amend any provision of the~~ Mortgage Loan is a Specially Serviced Mortgage Loan, ~~consent~~ by the Special Servicer, in each case pursuant to ~~or withhold consent from any action of~~ the Servicing Agreement and consistent with the Accepted Servicing Practices. Notwithstanding anything to the contrary contained herein, in accordance with the Servicing Agreement, the Lead Securitization Noteholder shall cause the Master Servicer and the Special Servicer to service and administer the Mortgage Loan ~~Borrower~~in accordance with the Accepted Servicing Practices, ~~or exercise or refrain from exercising any powers or rights which~~ taking into account the ~~Note Holders may have under the Mortgage Loan Documents, if any such action would constitute a “significant modification”~~ interests of the ~~Mortgage Loan~~Noteholders as a collective whole, ~~within~~ in each case subject to the ~~meaning~~ terms and conditions of ~~Section 1.860G-2(b)~~ this Agreement, and any Non-Lead Securitization Noteholder that is not a Borrower Restricted Party shall be deemed a third party beneficiary of such provisions of the ~~regulations of the United States Department of the Treasury, more than three (3) months after the startup day of the REMIC which includes the Notes (or any portion thereof)~~Servicing Agreement. ~~Each Note Holder agrees that the~~ The foregoing provisions of this paragraph shall be effected by compliance with any REMIC provisions in the Lead Securitization Servicing Agreement relating to the administration of the Mortgage Loan. Anything herein or in the Lead Securitization Servicing Agreement to the contrary notwithstanding, if one of the Notes is included in a REMIC, such other Note Holder shall not be required to reimburse such Note Holder or any other Person for payment of (i) any taxes imposed on such REMIC, (ii) any costs or expenses relating to the administration of such REMIC or to any determination respecting the amount, payment or avoidance of any tax under such REMIC or (iii) any advances for any of the foregoing or any interest thereon or for deficits in other items of disbursement or income resulting from the use of funds for payment of any such taxes, costs or expenses or advances, nor shall any disbursement or payment otherwise distributable to the other Note Holders be reduced to offset or make-up any such payment or deficit. (c) The Mortgage Loan shall be treated as a single loan for purposes of calculating the Appraisal Reduction amount. Appraisal Reduction amounts with respect to the Mortgage Loan shall be allocated, first, to the B Note, up to its outstanding principal balance, and then to the A Notes on a pro rata and pari passu basis (based on their relative outstanding principal balances). (d) Prior to calculating any amount of interest or principal due to the Note Holders under Section 3 hereof, the Servicer shall reduce the Note B Principal Balance (not below zero) by any Realized Loss with respect to the Mortgage Loan, and after the Note B Principal Balance has been reduced to zero, the Servicer shall reduce the Note A Principal Balance pro rata (based on their respective outstanding Principal Balances) (in each case, not below zero) by any Realized Loss with respect to the Mortgage Loan.this

Appears in 2 contracts

Samples: Agreement Between Noteholders (Bank 2021-Bnk33), Agreement Between Noteholders (Benchmark 2021-B25 Mortgage Trust)

Common use of Administration of the Mortgage Loan Clause in Contracts