Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, and in the best interests and for the benefit of the Certificateholders, in accordance with any and all applicable laws and the terms of this Agreement, the Insurance Policies and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. (b) Subject to Section 3.01(a), the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 9 contracts

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc), Pooling and Servicing Agreement (Nationslink Funding Corp), Pooling and Servicing Agreement (Nationslink Funding Corp)

Administration of the Mortgage Loans. (a) All of the Serviced Mortgage Loans and Administered REO Properties are to be serviced and administered by the Master Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and the Special Servicer shall service and administer the Serviced Mortgage Loans and Administered REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of a Serviced Loan Combination, for the benefit of the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this Agreement, ; (iii) the ~~Insurance Policies and~~ express terms of the respective Serviced Mortgage Loans ~~and~~and any and all related intercreditor, co-lender or similar agreements (including with respect to performing the duties of the holders of the respective Serviced Mortgage Loans thereunder (to the extent not inconsistent with this Agreement and to the extent consistent with the Servicing Standard)); and (iv) to the extent consistent with the foregoing, the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Serviced Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the ~~foregoing,~~ foregoing and subject to Section 3.21, (i) the Master Servicer shall service and administer all of the Performing Serviced Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans~~ Loan and Administered REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially~~ Performing Serviced Mortgage Loans ~~and REO Properties~~ as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to ~~Section~~ Sections 3.01(a), 3.20, 6.11 and 6.12, the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone (or, to the extent contemplated by Section 3.22 of this Agreement, through subservicers), to do or cause to be done any and all things in connection with ~~such~~ the servicing and administration ~~which~~ contemplated by Section 3.01(a) that it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is ~~hereby~~ authorized and empowered by the Trustee and, to the extent provided in the related Co-Lender Agreement, each related Serviced Non-Trust Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan Noteholder or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections ~~3.08~~ 3.01(a), 3.20, 6.11 and ~~3.20~~6.12, any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or ~~discharge~~discharge or of assignment, and all other comparable instruments; and (iv) any and all instruments that such party may be required to execute on behalf of the Trustee in connection with the defeasance of a Serviced Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Co-Lender Agreement; and, with respect to each Loan Combination, the parties hereto further recognize the respective rights and obligations of the Trust, as holder of the related Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan Noteholder(s) under the related Co-Lender Agreement. (d) With respect to any Serviced Loan Combination, in the event that neither the related Trust Mortgage Loan nor the related REO Property (or any interest therein) is an asset of the Trust Fund and, except as contemplated in the second paragraph of this Section 3.01(d), in accordance with the related Co-Lender Agreement, the servicing and administration of such Serviced Loan Combination and any related REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Serviced Loan Combination or (ii) if expressly provided for in the related Co-Lender Agreement) the Master Servicer and, if such Serviced Loan Combination is then being specially serviced hereunder or the related Mortgaged Property has become an REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Serviced Loan Combination and the related Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Serviced Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Serviced Loan Combination or any related REO Property, as applicable, has not been entered into as contemplated by the related Co-Lender Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Co-Lender Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Serviced Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such Serviced Loan Combination and/or any related REO Property, for the benefit of the respective holders of such Serviced Loan Combination, under this Agreement as if such Serviced Loan Combination or any related REO Property were the sole assets subject hereto, with certain references in this Agreement applicable to the Trust, the Trustee, the Certificates, the Certificateholders (or any subgroup thereof) or any representative of any such Certificateholders, all being construed to refer to such similar terms as are applicable to the then current holder of the Mortgage Note for the related Serviced Combination Trust Mortgage Loan. (e) The Master Servicer shall use efforts consistent with the Servicing Standard to have prepared, executed (with the cooperation of the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) in obtaining requisite signatures, if applicable) and delivered by the applicable party (and included in the Servicing File), not later than the later of (i) 30 days following the Master Servicer's receipt of the subject franchisor comfort letter, guaranty of payment or letter of credit and (ii) the expiration of the period that may be required for such transfer or assignment pursuant to the terms of the applicable franchisor comfort letter, guaranty of payment or letter of credit, if any, (A) with respect to any Serviced Mortgage Loan secured by a hospitality property (as identified on Schedule VI hereto) (and with respect to which a franchise agreement constitutes part of the related Mortgage File on the Closing Date), any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related franchisor comfort letter; and (B) with respect to any Serviced Mortgage Loan that has a related guaranty or letter of credit that constitutes part of the related Mortgage File on the Closing Date, any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related guaranty of payment or letter of credit. In the event, with respect to a Serviced Trust Mortgage Loan with a related letter of credit, it is determined by the Master Servicer that a draw under such letter of credit has become necessary under the terms thereof prior to the assignment under clause (B) of the preceding sentence having been effected, the Master Servicer shall direct (in writing) the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) to make such draw or to cause such draw to be made on behalf of the Trustee, and, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, use its best efforts to cause such draw to be made; provided that neither the Depositor nor the UBS Mortgage Loan Seller shall have any liability in connection with the determination to make, or the making of, such draw (other than to remit the proceeds of such draw to the Master Servicer). (f) The relationship of each of the Master Servicer and the Special Servicer to the ~~Trustee~~ Trustee, to the Serviced Non-Trust Mortgage Loan Noteholders and to each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C5), Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C5), Pooling and Servicing Agreement (Structured Asset Securities Corp Ii)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, and in the best interests and for the benefit of the Certificateholders, in accordance with any and all applicable laws and the terms of this ~~Agreement, the Insurance Policies~~ Agreement and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information ~~and~~ from the Special Servicer and, based thereon, prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans), and further to render such ~~incidental~~ other services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; and provided, further, that the Special Servicer shall render such services with respect to Mortgage Loans (other than the Specially Serviced Mortgage Loans) as are specifically provided for herein. (b) Subject to Section 3.01(a), the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with ~~it,~~ it are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc), Pooling and Servicing Agreement (Mortgage Capital Funding Inc), Pooling and Servicing Agreement (Mortgage Capital Funding Inc)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this ~~Agreement on behalf of the Trustee~~Agreement, ~~and in the best interests and~~ for the benefit of the Certificateholders, in accordance with any and all applicable laws and the terms of this Agreement, the Insurance Policies and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Special Servicer shall provide certain services with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans, as specifically provided herein, and the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. The Master Servicer shall not, on behalf of the Trustee, obtain title to a Mortgaged Property. (b) Subject to Section 3.01(a), the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; and (ii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. In addition, without limiting the generality of the foregoing, the Special Servicer is authorized and empowered by the Trustee to execute and deliver, in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File~~; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments~~. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer ~~and~~ or the Special Servicer, as ~~the case may be~~appropriate, any limited powers of attorney and other documents necessary or appropriate to enable ~~them~~ it to carry out ~~their~~ its servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Criimi Mae CMBS Corp), Pooling and Servicing Agreement (DLJ Commercial Mortgage Corp), Pooling and Servicing Agreement (Criimi Mae CMBS Corp)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of any Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Noteholder(s)) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of a Loan Combination, the terms of the related Loan Combination Intercreditor Agreement (which, in the event of any conflict with this Agreement, shall control), to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, and ~~prepare~~ prepare, or cause to be prepared, all reports to required hereunder, except for the ~~Trustee required hereunder~~ reports specified herein, as prepared by the Special Servicer with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ the Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a), Section 6.11 and Section 6.12, the Master Servicer and the Special Servicer each shall have full power and authority, acting ~~alone~~alone (or, pursuant to Section 3.22, through one or more Sub-Servicers), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Loan Combination Intercreditor Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee ~~or any of them:~~ and each such Non-Trust Noteholder, (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20, Section 6.11 and ~~3.20~~Section 6.12, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name (or, in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's name) without indicating the Master Servicer's or Special Servicer's as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer,~~ venture or partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event shall the Master Servicer, the Trustee or the Fiscal Agent make a Servicing Advance with respect to any Non-Trust Loan to the extent the related Trust Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Neither the Master Servicer nor the Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement. (f) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Loan Combination Intercreditor Agreement. The parties hereto further recognize the respective rights and obligations of the related Non-Trust Noteholder(s) under the related Loan Combination Intercreditor Agreement, including with respect to (i) the allocation of collections on or in respect of the applicable Loan Combination, and the making of payments, to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, (ii) the allocation of expenses and/or losses relating to the subject Loan Combination to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, and (iii) the right of a B-Noteholder or its designee (in the case of an A/B Loan Combination) or the Glendale Galleria Pari Passu Noteholder or a Glendale Galleria Subordinate Noteholder (in the case of the Glendale Galleria Loan Combination) to purchase the related Trust Mortgage Loan in accordance with the related Loan Combination Intercreditor Agreement. (g) With respect to any Loan Combination that includes a Trust Mortgage Loan, in the event that either the related Trust Mortgage Loan or the related Loan Combination REO Property (or any ~~two or more Mortgage Loans are cross-collateralized with each other~~interest therein) is no longer an asset of the Trust Fund and, except as contemplated in the ~~Master Servicer or Special Servicer, as applicable~~second paragraph of this Section 3.01(g), in accordance with the ~~terms~~ related Loan Combination Intercreditor Agreement, the servicing and administration of such Loan Combination and any related Loan Combination REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in or pursuant to the related Loan Combination Intercreditor Agreement) the Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Loan Combination Mortgaged Property has become a Loan Combination REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Loan Combination Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Loan Combination that includes a Trust Mortgage Loan, if at any time neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related Loan Combination REO Property, as applicable, has not been entered into as contemplated by the related Loan Combination Intercreditor Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Loan Combination Intercreditor Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such ~~Mortgage Loans~~ Loan Combination and/or any related Loan Combination REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as ~~a single Mortgage~~ if such Loan ~~as and when it deems necessary and appropriate, consistent with~~ Combination or any related Loan Combination REO Property were the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"sole assets subject hereto.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Cki1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Cki1)

Administration of the Mortgage Loans. (a) All of the Serviced Mortgage Loans and Administered REO Properties are to be serviced and administered by the Master Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and the Special Servicer shall service and administer the Serviced Mortgage Loans and Administered REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of a Serviced Loan Combination, for the benefit of the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this Agreement, ; (iii) the ~~Insurance Policies and~~ express terms of the respective Serviced Mortgage Loans ~~and~~and any and all related intercreditor, co-lender or similar agreements (including with respect to performing the duties of the holders of the respective Serviced Mortgage Loans thereunder (to the extent not inconsistent with this Agreement and to the extent consistent with the Servicing Standard)); and (iv) to the extent consistent with the foregoing, the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Serviced Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the ~~foregoing,~~ foregoing and subject to Section 3.21, (i) the Master Servicer shall service and administer all of the Performing Serviced Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans~~ Loan and Administered REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially~~ Performing Serviced Mortgage Loans ~~and REO Properties~~ as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to ~~Section~~ Sections 3.01(a), 3.20, 6.11 and 6.12, the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone (or, to the extent contemplated by Section 3.22 of this Agreement, through subservicers), to do or cause to be done any and all things in connection with ~~such~~ the servicing and administration ~~which~~ contemplated by Section 3.01(a) that it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is ~~hereby~~ authorized and empowered by the Trustee and, to the extent provided in the related Co-Lender Agreement, each related Serviced Non-Trust Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan Noteholder or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections ~~3.08~~ 3.01(a), 3.20, 6.11 and ~~3.20~~6.12, any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or ~~discharge~~discharge or of assignment, and all other comparable instruments; and (iv) any and all instruments that such party may be required to execute on behalf of the Trustee in connection with the defeasance of a Serviced Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Co-Lender Agreement; and, with respect to each Loan Combination, the parties hereto further recognize the respective rights and obligations of the Trust, as holder of the related Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan Noteholder(s) under the related Co-Lender Agreement. (d) With respect to any Serviced Loan Combination, in the event that neither the related Trust Mortgage Loan nor the related REO Property (or any interest therein) is an asset of the Trust Fund and, except as contemplated in the second paragraph of this Section 3.01(d), in accordance with the related Co-Lender Agreement, the servicing and administration of such Serviced Loan Combination and any related REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Serviced Loan Combination or (ii) if expressly provided for in the related Co-Lender Agreement) the Master Servicer and, if such Serviced Loan Combination is then being specially serviced hereunder or the related Mortgaged Property has become an REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Serviced Loan Combination and the related Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Serviced Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Serviced Loan Combination or any related REO Property, as applicable, has not been entered into as contemplated by the related Co-Lender Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Co-Lender Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Serviced Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such Serviced Loan Combination and/or any related REO Property, for the benefit of the respective holders of such Serviced Loan Combination, under this Agreement as if such Serviced Loan Combination or any related REO Property were the sole assets subject hereto, with certain references in this Agreement applicable to the Trust, the Trustee, the Certificates, the Certificateholders (or any subgroup thereof) or any representative of any such Certificateholders, all being construed to refer to such similar terms as are applicable to the then current holder of the Mortgage Note for the related Serviced Combination Trust Mortgage Loan. (e) The Master Servicer shall use efforts consistent with the Servicing Standard to have prepared, executed (with the cooperation of the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) in obtaining requisite signatures, if applicable) and delivered by the applicable party (and included in the Servicing File), not later than the later of (i) 30 days following the Master Servicer's receipt of the subject franchisor comfort letter, guaranty of payment or letter of credit and (ii) the expiration of the period that may be required for such transfer or assignment pursuant to the terms of the applicable franchisor comfort letter, guaranty of payment or letter of credit, if any, (A) with respect to any Serviced Mortgage Loan secured by a hospitality property (as identified on Schedule VI hereto) (and with respect to which a franchise agreement constitutes part of the related Mortgage File on the Closing Date), any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related franchisor comfort letter; and (B) with respect to any Serviced Mortgage Loan that has a related guaranty or letter of credit that constitutes part of the related Mortgage File on the Closing Date, any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related guaranty of payment or letter of credit. In the event, with respect to a Serviced Trust Mortgage Loan with a related letter of credit, it is determined by the Master Servicer that a draw under such letter of credit has become necessary under the terms thereof prior to the assignment under clause (B) of the preceding sentence having been effected, the Master Servicer shall direct (in writing) the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) to make such draw or to cause such draw to be made on behalf of the Trustee, and, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, use its best efforts to cause such draw to be made; provided that neither the Depositor nor the UBS Mortgage Loan Seller shall have any liability in connection with the determination to make, or the making of, such draw (other than to remit the proceeds of such draw to the Master Servicer). (f) The relationship of each of the Master Servicer and the Special Servicer to the ~~Trustee~~ Trustee, to the Serviced Non-Trust Mortgage Loan Noteholders and to each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (dg) ~~In the event that~~ If Schedule VIII attached hereto identifies any ~~two or more~~ Outside Serviced Trust Mortgage ~~Loans are cross-collateralized with each other~~Loan, then such Outside Serviced Trust Mortgage Loan (and, if such Outside Serviced Trust Mortgage Loan is part of a Loan Combination, the ~~Master Servicer or Special Servicer, as applicable,~~ related Outside Serviced Non-Trust Mortgage Loan(s)) will primarily be serviced and administered in accordance with the ~~terms of this~~ related Outside Servicing Agreement, ~~shall service~~ and ~~administer~~ the servicing and administrative duties of the parties hereto with respect to any such Outside Serviced Trust Mortgage ~~Loans as a single~~ Loan, any successor REO Trust Mortgage Loan as with respect thereto and ~~when it deems necessary and appropriate, consistent with the Servicing Standard~~any related Outside Administered REO Property shall be limited to those expressly set forth herein. If Schedule VIII attached hereto does not identify any ~~Cross-Collateralized Mortgage Loan becomes a Specially~~ Outside Serviced Trust Mortgage Loan, then ~~each other~~ the provisions hereof specifically relating to Outside Serviced Trust Mortgage Loans, Outside Serviced Non-Trust Mortgage Loans, Outside Master Servicers, Outside Serviced Loan ~~that is cross-collateralized with it shall also become a Specially~~ Combinations, Outside Serviced Mortgage ~~Loan. Similarly~~Loans, Outside Servicers, Outside Special Servicers, Outside Servicer Defaults, Outside Servicing Agreements, Outside Servicing Fees, Outside Servicing Fee Rates and Underlying Collection Periods shall be of no ~~Cross-Collateralized~~ force and effect, and each and every Mortgage Loan shall ~~subsequently become~~ be a ~~Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other~~ Serviced Mortgage Loan ~~that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"~~and each and every REO Property shall be an Administered REO Property.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C1), Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C1)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, and in the best interests and for the benefit of the Certificateholders, in accordance with any and all applicable laws and the terms of this Agreement, the Insurance Policies and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. (b) Subject to Section 3.01(a)) and the terms and provisions of this Agreement, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-2), Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-2)

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Banc of America Merrill Lynch Commercial Mortgage Inc.), Pooling and Servicing Agreement (Banc of America Merrill Lynch Commercial Mortgage Inc.)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of the Great Mall Loan Pair, for the benefit of the Certificateholders and the Great Mall B-Noteholder) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; provided~~, however~~, that the Master Servicer shall continue to ~~collect information~~ receive payments, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ the Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting ~~alone~~alone (or, pursuant to Section 3.22, through one or more Sub-Servicers), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee or any of ~~them:~~ them (and in the case of the Great Mall B-Note Loan, is hereby authorized by the Great Mall B-Noteholder (by its acceptance of the terms and conditions hereof and the benefits accruing to it hereunder) to execute and deliver, on behalf of the Great Mall B-Noteholder), (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished -95- by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name (or, in the case of the Great Mall B-Note Loan, solely under the Great Mall B-Noteholder's name) without indicating the Master Servicer's or Special Servicer's as applicable, representative capacity or (ii) take any action with the intent to cause, or which actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer,~~ venture or partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) Neither the Master Servicer nor the Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement. (e) The parties hereto acknowledge that the Great Mall Loan Pair is subject to the terms and conditions of the Great Mall Co-Lender Agreement. The parties hereto further recognize the respective rights and obligations of the Great Mall Noteholders under the Great Mall Co-Lender Agreement, including with respect to (i) the allocation of collections on or in respect of the Great Mall Loan Pair, and the making of payments, to the Great Mall Noteholders in accordance with Sections 5, 6 and 8 of the Great Mall Co-Lender Agreement, (ii) the allocation of expenses and losses relating to the Great Mall Loan Pair to the Great Mall Noteholders in accordance with Sections 4 and 7 of the Great Mall Co-Lender Agreement, (iii) the purchase of the Great Mall Trust Mortgage Loan by the Great Mall B-Noteholder or its designee in accordance with Section 11(a) of the Great Mall Co-Lender Agreement, and (iv) the right of the Great Mall B-Noteholder or its designee to cure certain events of default occurring with respect to the Great Mall Trust Mortgage Loan in accordance with Section 11(b) of the Great Mall Co-Lender Agreement. In the event that neither the Great Mall Trust Mortgage Loan nor any ~~two or more~~ related REO Property is an asset of the Trust Fund and the servicing and administration of the Great Mall Loan Pair and any related REO Property is to be governed by the Great Mall Co-Lender Agreement and not by this Agreement, as contemplated by Section 4(c) of the Great Mall Co-Lender Agreement, then (upon request of the Great Mall Noteholder in respect of the Great Mall Trust Mortgage ~~Loans are cross-collateralized with each other,~~ Loan) the Master Servicer or and the Special ~~Servicer, as applicable,~~ Servicer shall continue to act in ~~accordance with~~ such capacities under the ~~terms of this~~ Great Mall Co-Lender Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1)

Administration of the Mortgage Loans. (a) All of the Serviced Mortgage Loans and Administered REO Properties are to be serviced and administered by the Master Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and the Special Servicer shall service and administer the Serviced Mortgage Loans and Administered REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of a Serviced Loan Combination, for the benefit of the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this Agreement, ; (iii) the ~~Insurance Policies and~~ express terms of the respective Serviced Mortgage Loans ~~and~~and any and all related intercreditor, co-lender or similar agreements (including with respect to performing the duties of the holders of the respective Trust Mortgage Loans thereunder (to the extent not inconsistent with this Agreement and to the extent consistent with the Servicing Standard)); and (iv) to the extent consistent with the foregoing, the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Serviced Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the ~~foregoing,~~ foregoing and subject to Section 3.21, (i) the Master Servicer shall service and administer all of the Performing Serviced Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans~~ Loan and Administered REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially~~ the Performing Serviced Mortgage Loans ~~and REO Properties~~ as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to ~~Section~~ Sections 3.01(a), 3.20, 6.11 and 6.12, the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone (or, to the extent contemplated by Section 3.22 of this Agreement, through subservicers), to do or cause to be done any and all things in connection with ~~such~~ the servicing and administration ~~which~~ contemplated by Section 3.01(a) that it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is ~~hereby~~ authorized and empowered by the Trustee and, to the extent provided in the related Co-Lender Agreement, each related Serviced Non-Trust Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan Noteholder or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections ~~3.08~~ 3.01(a), 3.20, 6.11 and ~~3.20~~6.12, any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or ~~discharge~~discharge or of assignment, and all other comparable instruments; and (iv) any and all instruments that such party may be required to execute on behalf of the Trustee in connection with the defeasance of a Serviced Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The parties hereto acknowledge that each Serviced Loan Combination is subject to the terms and conditions of the related Co-Lender Agreement. With respect to each Serviced Loan Combination, the parties hereto further recognize the respective rights and obligations of the Trust, as holder of the related Serviced Combination Trust Mortgage Loan, and of the related Serviced Non-Trust Mortgage Loan Noteholder(s) under the related Co-Lender Agreement, including with respect to: (i) the allocation of collections on or in respect of such Serviced Loan Combination, and the making of remittances, to the Trust, as holder of the related Serviced Combination Trust Mortgage Loan, and to the related Serviced Non-Trust Mortgage Loan Noteholder(s), in accordance with Section 4.01 of the related Co-Lender Agreement; (ii) the allocation of expenses and losses relating to such Serviced Loan Combination to the Trust, as holder of the related Serviced Combination Trust Mortgage Loan, and to the related Serviced Non-Trust Mortgage Loan Noteholder(s), in accordance with Section 4.02 of the related Co-Lender Agreement; (iii) the right of one or more related Serviced Non-Trust Mortgage Loan Noteholders to purchase the related Serviced Combination Trust Mortgage Loan, in accordance with Section 4.03 of the related Co-Lender Agreement; and (iv) in the case of the 222 East 41st Street Loan Pair, the 222 East 41st Street Cure Righxx xxx, xx xxx xxxx of the 757 Third Xxxxxx Xxxx Xxxx, xhe 757 Third Avenue Cure Rights. (x) Xxxx xxxxxct to any Servicxx Xxxx Xxxxxxxxion, in the event that neither the related Trust Mortgage Loan nor the related REO Property is an asset of the Trust Fund and, except as contemplated in the second paragraph of this Section 3.01(d), in accordance with the related Co-Lender Agreement, the servicing and administration of such Serviced Loan Combination and any related REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Serviced Loan Combination or (ii) if expressly provided for in the related Co-Lender Agreement) the Master Servicer and, if such Serviced Loan Combination is then being specially serviced hereunder or the related Mortgaged Property has become an REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Serviced Loan Combination and the related Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Serviced Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related REO Property is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Serviced Loan Combination or any related REO Property, as applicable, has not been entered into as contemplated by the related Co-Lender Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Co-Lender Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related REO Property is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Serviced Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such Serviced Loan Combination and/or any related REO Property, for the benefit of the respective holders of such Serviced Loan Combination, under this Agreement as if such Serviced Loan Combination or any related REO Property were the sole assets subject hereto, with certain references in this Agreement applicable to the Trust, the Trustee, the Certificates, the Certificateholders (or any subgroup thereof) or any representative of any such Certificateholders, all being construed to refer to such similar terms as are applicable to the then current holder of the Mortgage Note for the related Serviced Combination Trust Mortgage Loan. (e) The parties hereto acknowledge that the Meriden Mall Loan Pair is subject to the terms and conditions of the Meriden Mall Co-Lender Agreement. The parties hereto further recognize the respective rights and obligations of the Meriden Mall Noteholders under the Meriden Mall Co-Lender Agreement, including with respect to: (i) the allocation of collections on or in respect of the Meriden Mall Loan Pair, and the making of remittances, to the Meriden Mall Noteholders in accordance with the related loan documents and Section 4.01 of the Meriden Mall Co-Lender Agreement; and (ii) the making of remittances to the Meriden Mall Noteholders in accordance with Section 4.01 of the Meriden Mall Co-Lender Agreement. The parties hereto further acknowledge that (i) the Meriden Mall Loan Pair is to be serviced and administered by the Meriden Mall Servicers in accordance with the Meriden Mall Servicing Agreement, which term includes any successor agreement contemplated under the Meriden Mall Co-Lender Agreement, (ii) the obligations of the Master Servicer with respect to the Meriden Mall Trust Mortgage Loan are only as expressly set forth in this Agreement, (iii) none of the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent have any obligation to monitor or supervise, or be liable for, the performance of the Meriden Mall Servicers other than as expressly set forth in this Agreement, and (iv) none of the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent have any obligation to make Servicing Advances with respect to the Meriden Mall Loan Pair. (f) The parties hereto acknowledge that the Grace Building Loan Group is subject to the terms and conditions of the Grace Building Co-Lender Agreement. The parties hereto further recognize the respective rights and obligations of the Grace Building Noteholders under the Grace Building Co-Lender Agreement, including with respect to: (i) the allocation of collections on or in respect of the Grace Building Loan Group, and the making of remittances, to the Grace Building Noteholders in accordance with Section 4.01 of the Grace Building Co-Lender Agreement; (ii) the allocation of expenses and losses relating to the Grace Building Loan Group to the Grace Building Noteholders in accordance with Section 4.02 of the Grace Building Co-Lender Agreement; (iii) the sharing of certain expenses in accordance with Section 4.05 of the Grace Building Co-Lender Agreement; (iv) the right of the designee of the Grace Building Non-Trust Mortgage Loan Noteholders to purchase the Grace Building Trust Mortgage Loan in accordance with Section 4.03 of the Grace Building Co-Lender Agreement; and (v) the right of the designee of the Grace Building Non-Trust Mortgage Loan Noteholder to cure certain events of default occurring with respect to the Grace Building Trust Mortgage Loan in accordance with Article VII of the Grace Building Co-Lender Agreement. The parties hereto further acknowledge that (i) the Grace Building Loan Group is to be serviced and administered by the Grace Building Servicers in accordance with the Grace Building Servicing Agreement, which term includes any successor agreement contemplated under the Grace Building Co-Lender Agreement, (ii) the obligations of the Master Servicer with respect to the Grace Building Trust Mortgage Loan are only as expressly set forth in this Agreement, (iii) none of the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent have any obligation to monitor or supervise, or be liable for, the performance of the Grace Building Servicers other than as expressly set forth in this Agreement, and (iv) none of the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent have any obligation to make Servicing Advances with respect to the Grace Building Loan Group. (g) The Master Servicer shall use efforts consistent with the Servicing Standard to have prepared, executed (with the cooperation of the Depositor (in the case of a Lehman Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe of a UBS Trust Mortgage Loan) in obtaining requisite signatures, if applicable) and delivered by the applicable party (and included in the Servicing File), not later than the later of (i) 30 days following the Master Servicer's receipt of the subject franchisor comfort letter, guaranty of payment or letter of credit and (ii) the expiration of the period that may be required for such transfer or assignment pursuant to the terms of the applicable franchisor comfort letter, guaranty of payment or letter of credit, if any, (A) with respect to any Serviced Mortgage Loan secured by a hospitality property (as identified on Schedule VI hereto) (and with respect to which a franchise agreement constitutes part of the related Mortgage File on the Closing Date), any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related franchisor comfort letter; and (B) with respect to any Serviced Mortgage Loan that has a related guaranty or letter of credit that constitutes part of the related Mortgage File on the Closing Date, any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related guaranty of payment or letter of credit. In the event, with respect to a Serviced Trust Mortgage Loan with a related letter of credit, it is determined by the Master Servicer that a draw under such letter of credit has become necessary under the terms thereof prior to the assignment under clause (B) of the preceding sentence having been effected, the Master Servicer shall direct (in writing) the Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) to make such draw or to cause such draw to be made on behalf of the Trustee, and, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, use its best efforts to cause such draw to be made; provided that neither the Depositor nor the UBS Mortgage Loan Seller shall have any liability in connection with the determination to make, or the making of, such draw (other than to remit the proceeds of such draw to the Master Servicer). (h) The relationship of each of the Master Servicer and the Special Servicer to the ~~Trustee~~ Trustee, to the Serviced Non-Trust Mortgage Loan Noteholders and to each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C8), Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C8)

Administration of the Mortgage Loans. (a) All of the Serviced Mortgage Loans and Administered REO Properties are to be serviced and administered by the Master Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and the Special Servicer shall service and administer the Serviced Mortgage Loans and Administered REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of a Serviced Loan Combination, for the benefit of the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this Agreement, ; (iii) the ~~Insurance Policies and~~ express terms of the respective Serviced Mortgage Loans ~~and~~and any and all related intercreditor, co-lender or similar agreements (including with respect to performing the duties of the holders of the respective Serviced Mortgage Loans thereunder (to the extent not inconsistent with this Agreement and to the extent consistent with the Servicing Standard)); and (iv) to the extent consistent with the foregoing, the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Serviced Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the ~~foregoing,~~ foregoing and subject to Section 3.21, (i) the Master Servicer shall service and administer all of the Performing Serviced Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans~~ Loan and Administered REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially~~ Performing Serviced Mortgage Loans ~~and REO Properties~~ as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to ~~Section~~ Sections 3.01(a), 3.20, 6.11 and 6.12, the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone (or, to the extent contemplated by Section 3.22 of this Agreement, through subservicers), to do or cause to be done any and all things in connection with ~~such~~ the servicing and administration ~~which~~ contemplated by Section 3.01(a) that it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is ~~hereby~~ authorized and empowered by the Trustee and, to the extent provided in the related Co-Lender Agreement, each related Serviced Non-Trust Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan Noteholder or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections ~~3.08~~ 3.01(a), 3.20, 6.11 and ~~3.20~~6.12, any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or ~~discharge~~discharge or of assignment, and all other comparable instruments; and (iv) any -152- and all instruments that such party may be required to execute on behalf of the Trustee in connection with the defeasance of a Serviced Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Co-Lender Agreement; and, with respect to each Loan Combination, the parties hereto further recognize the respective rights and obligations of the Trust, as holder of the related Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan Noteholder(s) under the related Co-Lender Agreement. (d) With respect to any Serviced Loan Combination, in the event that neither the related Trust Mortgage Loan nor the related REO Property (or any interest therein) is an asset of the Trust Fund and, except as contemplated in the second paragraph of this Section 3.01(d), in accordance with the related Co-Lender Agreement, the servicing and administration of such Serviced Loan Combination and any related REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Serviced Loan Combination or (ii) if expressly provided for in the related Co-Lender Agreement) the Master Servicer and, if such Serviced Loan Combination is then being specially serviced hereunder or the related Mortgaged Property has become an REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Serviced Loan Combination and the related Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Serviced Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Serviced Loan Combination or any related REO Property, as applicable, has not been entered into as contemplated by the related Co-Lender Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Co-Lender Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Serviced Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such Serviced Loan Combination and/or any related REO Property, for the benefit of the respective holders of such Serviced Loan Combination, under this Agreement as if such Serviced Loan Combination or any related REO Property were the sole assets subject hereto, with certain references in this Agreement applicable to the Trust, the Trustee, the Certificates, the Certificateholders (or any subgroup thereof) or any representative of any such Certificateholders, all being construed to refer to such similar terms as are applicable to the then current holder of the Mortgage Note for the related Serviced Combination Trust Mortgage Loan. (e) The Master Servicer shall use efforts consistent with the Servicing Standard to have prepared, executed (with the cooperation of the Depositor, in the case of a Xxxxxx Trust Mortgage Loan, and the related Unaffiliated Mortgage Loan Seller, in the case of a Non-Xxxxxx Trust Mortgage Loan, in obtaining requisite signatures, if applicable) and delivered by the applicable party (and included in the Servicing File), not later than the later of (i) 30 days following the Master Servicer's receipt of the subject franchisor comfort letter, guaranty of payment or letter of credit and (ii) the expiration of the period that may be required for such transfer or assignment pursuant to the terms of the applicable franchisor comfort letter, guaranty of payment or letter of credit, if any, (A) with respect to any Serviced Mortgage Loan secured by a hospitality property (as identified on Schedule VI hereto) (and with respect to which a franchise agreement constitutes part of the related Mortgage File on the Closing Date), any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related franchisor comfort letter; and (B) with respect to any Serviced Mortgage Loan that has a related guaranty or letter of credit that constitutes part of the related Mortgage File on the Closing Date, any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related guaranty of payment or letter of credit. In the event, with respect to a Serviced Trust Mortgage Loan with a related letter of credit, it is determined by the Master Servicer that a draw under such letter of credit has become necessary under the terms thereof prior to the assignment under clause (B) of the preceding sentence having been effected, the Master Servicer shall direct (in writing) the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan) to make such draw or to cause such draw to be made on behalf of the Trustee, and, the Depositor will, and each Unaffiliated Mortgage Loan Seller will be obligated under the related Mortgage Loan Purchase Agreement to, use its best efforts to cause such draw to be made; provided that neither the Depositor nor any Unaffiliated Mortgage Loan Seller shall have any liability in connection with the determination to make, or the making of, such draw (other than to remit the proceeds of such draw to the Master Servicer). (f) The relationship of each of the Master Servicer and the Special Servicer to the ~~Trustee~~ Trustee, to the Serviced Non-Trust Mortgage Loan Noteholders and to each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or or, except as set forth in this Agreement, agent. (dg) In If the ~~event~~ Trust Fund includes any Outside Serviced Trust Mortgage Loans, then the parties hereto acknowledge that ~~any two or more~~ each Outside Serviced Trust Mortgage ~~Loans are cross~~Loan and the related Outside Serviced Non-~~collateralized with each other, the Master Servicer or Special Servicer, as applicable,~~ Trust Mortgage Loan(s) will primarily be serviced and administered in accordance with the ~~terms of this~~ related Outside Servicing Agreement, ~~shall service~~ and ~~administer such Mortgage Loans as a single Mortgage Loan as~~ the servicing and ~~when it deems necessary and appropriate, consistent~~ administrative duties of the parties hereto with ~~the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially~~ respect to each Outside Serviced Trust Mortgage Loan, ~~then each other~~ any successor REO Trust Mortgage Loan ~~that is cross-collateralized~~ with it respect thereto and any related Outside Administered REO Property shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"be limited to those expressly set forth herein.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (LB Commercial Mortgage Trust 2007-C3), Pooling and Servicing Agreement (LB Commercial Mortgage Trust 2007-C3)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans (other than the Non-Serviced Mortgage Loans) and Companion Loans (other than the Non-Serviced Companion Loans) that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided that in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section ~~3.21~~3.21 and without limitation of Section 4.03 and any other provision of this Agreement that expressly requires the Master Servicer or the Special Servicer to take action with respect to a Non-Serviced Mortgage Loan as specified in the succeeding paragraph, (i) the Master Servicer shall service and administer all Mortgage Loans and the Companion Loans (other than the Non-Serviced Mortgage Loans and their related Companion Loans, as ~~to which no Servicing Transfer Event has occurred and all Corrected~~ applicable) that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan (other than ~~a Corrected~~ the Non-Serviced Mortgage ~~Loan~~Loans and their related Companion Loans) and REO Property and shall render such services with respect to all Mortgage Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, that the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. The parties hereto acknowledge that each of the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan and their related Companion Loans are subject to a related Intercreditor Agreement and are being serviced and administered under the 2007-C30 Pooling and Servicing Agreement, the Xxxxxx Xxxxxxx 2007-IQ14 Pooling and Servicing Agreement and the GECMC 2007-C1 Pooling and Servicing Agreement, respectively. The Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have no obligation or authority (i) to service and administer the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan or the GECMC 2007-C1 Serviced Mortgage Loan or their related Companion Loans (except for the limited duties with respect to the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan expressly provided herein), (ii) to supervise the 2007-C30 Master Servicer, the 2007-C30 Special Servicer, the 2007-C30 Trustee, the Xxxxxx Xxxxxxx 2007-IQ14 Master Servicer, the Xxxxxx Xxxxxxx 2007-IQ14 Special Servicer, the Xxxxxx Xxxxxxx 2007-IQ14 Trustee, the GECMC 2007-C1 Master Servicer, the GECMC 2007-C1 Special Servicer or the GECMC 2007-C1 Trustee or (iii) to make Servicing Advances or P&I Advances (except to the limited extent described in Section 4.03 with respect to P&I Advances to be made by the Master Servicer or the Trustee on the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan). In addition to any other obligations expressly set forth herein by specific reference to the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan or the GECMC 2007-C1 Serviced Mortgage Loan, the Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have the following obligations with respect to the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan, as the case may be: (i) The Trustee and the Paying Agent shall have the obligations described under Section 2.02 with respect to the Mortgage File for the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan; (ii) Each of the Master Servicer, the Special Servicer and the Trustee shall have the obligations, if any, applicable to such party under Section 2.03 with respect to the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan; (iii) The Master Servicer shall have the obligations described under Sections 3.04 and 3.05 with respect to all amounts received from the 2007-C30 Master Servicer, the Xxxxxx Xxxxxxx 2007-IQ14 Master Servicer and the GECMC 2007-C1 Master Servicer with respect to the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan; (iv) The Trustee shall have the obligations described under Section 3.10 with respect to the Mortgage File for the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan; (v) Upon receipt of information and reports on the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan from the 2007-C30 Master Servicer, the Xxxxxx Xxxxxxx 2007-IQ14 Master Servicer and the GECMC 2007-C1 Master Servicer, respectively, the Master Servicer shall include such information in the reports and notices required under Section 3.12; (vi) The Master Servicer and the Paying Agent shall each have the obligations applicable to such party under Section 3.15 with respect to information and reports it has received regarding the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan; and (vii) The Master Servicer shall have the obligations described under Section 3.19(a) with respect to any Prepayment Interest Shortfall on the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan. The obligation of the Master Servicer to provide information and collections to the Paying Agent and the Certificateholders with respect to the 2007-C30 Serviced Mortgage Loans, the Xxxxxx Xxxxxxx 2007-IQ14 Serviced Mortgage Loan and the GECMC 2007-C1 Serviced Mortgage Loan shall be dependent on its receipt of the corresponding information and collections from the 2007-C30 Master Servicer, the Xxxxxx Xxxxxxx 2007-IQ14 Master Servicer, the GECMC 2007-C1 Master Servicer, the 2007-C30 Special Servicer, the Xxxxxx Xxxxxxx 2007-IQ14 Special Servicer or the GECMC 2007-C1 Special Servicer, as the case may be. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Intercreditor Agreement, the Companion Holders to execute and deliver, on behalf of the ~~Certificateholders~~ Certificateholders, the Companion Holders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(h). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer; provided, further, that the Master Servicer and the Special Servicer shall not, without the Trustee’s written consent, (A) initiate any action in the Trustee’s name without indicating the Master Servicer’s or Special Servicer’s representative capacity or (B) cause the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event ~~that any two or more Mortgage Loans are cross-collateralized with each other,~~ shall the Master Servicer make a Servicing Advance with respect to any Companion Loan to the extent the related Co-Lender Loan has been paid in full or ~~Special Servicer,~~ is no longer included in the Trust Fund. (e) Servicing and administration of each Companion Loan (other than the Non-Serviced Companion Loans) shall continue hereunder for so long as ~~applicable,~~ the corresponding Co-Lender Loan (other than with respect to the Non-Serviced Mortgage Loans) or any related REO Property is part of the Trust Fund or for such longer period as any amounts payable by the related Companion Holder to or for the benefit of the Trust Fund or any party hereto in accordance with the ~~terms of~~ related Intercreditor Agreement remain due and owing; provided, however, if any Companion Loan (other than the Non-Serviced Companion Loans) is securitized, the Master Servicer’s servicing obligations and duties with respect to the related Companion Loan shall be limited to those obligations and duties described in the related Intercreditor Agreement and this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C31), Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C31)

Administration of the Mortgage Loans. (a) All of the Serviced Mortgage Loans and Administered REO Properties are to be serviced and administered by the Master Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and the Special Servicer shall service and administer the Serviced Mortgage Loans and Administered REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of a Serviced Loan Combination, for the benefit of the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this Agreement, ; (iii) the ~~Insurance Policies and~~ express terms of the respective Serviced Mortgage Loans ~~and~~and any and all related intercreditor, co-lender or similar agreements (including with respect to performing the duties of the holders of the respective Serviced Mortgage Loans thereunder (to the extent not inconsistent with this Agreement and to the extent consistent with the Servicing Standard)); and (iv) to the extent consistent with the foregoing, the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Serviced Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the ~~foregoing,~~ foregoing and subject to Section 3.21, (i) the Master Servicer shall service and administer all of the Performing Serviced Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans~~ Loan and Administered REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially~~ Performing Serviced Mortgage Loans ~~and REO Properties~~ as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to ~~Section~~ Sections 3.01(a), 3.20, 6.11 and 6.12, the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone (or, to the extent contemplated by Section 3.22 of this Agreement, through subservicers), to do or cause to be done any and all things in connection with ~~such~~ the servicing and administration ~~which~~ contemplated by Section 3.01(a) that it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is ~~hereby~~ authorized and empowered by the Trustee and, to the extent provided in the related Co-Lender Agreement, each related Serviced Non-Trust Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan Noteholder or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections ~~3.08~~ 3.01(a), 3.20, 6.11 and ~~3.20~~6.12, any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or ~~discharge~~discharge or of assignment, and all other comparable instruments; and (iv) any and all instruments that such party may be required to execute on behalf of the Trustee in connection with the defeasance of a Serviced Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Co-Lender Agreement; and, with respect to each Loan Combination, the parties hereto further recognize the respective rights and obligations of the Trust, as holder of the related Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan Noteholder(s) under the related Co-Lender Agreement. (d) With respect to any Serviced Loan Combination, in the event that neither the related Trust Mortgage Loan nor the related REO Property (or any interest therein) is an asset of the Trust Fund and, except as contemplated in the second paragraph of this Section 3.01(d), in accordance with the related Co-Lender Agreement, the servicing and administration of such Serviced Loan Combination and any related REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Serviced Loan Combination or (ii) if expressly provided for in the related Co-Lender Agreement) the Master Servicer and, if such Serviced Loan Combination is then being specially serviced hereunder or the related Mortgaged Property has become an REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Serviced Loan Combination and the related Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Serviced Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Serviced Loan Combination or any related REO Property, as applicable, has not been entered into as contemplated by the related Co-Lender Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Co-Lender Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Serviced Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such Serviced Loan Combination and/or any related REO Property, for the benefit of the respective holders of such Serviced Loan Combination, under this Agreement as if such Serviced Loan Combination or any related REO Property were the sole assets subject hereto, with certain references in this Agreement applicable to the Trust, the Trustee, the Certificates, the Certificateholders (or any subgroup thereof) or any representative of any such Certificateholders, all being construed to refer to such similar terms as are applicable to the then current holder of the Mortgage Note for the related Serviced Combination Trust Mortgage Loan. (e) The Master Servicer shall use efforts consistent with the Servicing Standard to have prepared, executed (with the cooperation of the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) in obtaining requisite signatures, if applicable) and delivered by the applicable party (and included in the Servicing File), not later than the later of (i) 30 days following the Master Servicer's receipt of the subject franchisor comfort letter, guaranty of payment or letter of credit and (ii) the expiration of the period that may be required for such transfer or assignment pursuant to the terms of the applicable franchisor comfort letter, guaranty of payment or letter of credit, if any, (A) with respect to any Serviced Mortgage Loan secured by a hospitality property (as identified on Schedule VI hereto) (and with respect to which a franchise agreement constitutes part of the related Mortgage File on the Closing Date), any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related franchisor comfort letter; and (B) with respect to any Serviced Mortgage Loan that has a related guaranty or letter of credit that constitutes part of the related Mortgage File on the Closing Date, any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related guaranty of payment or letter of credit. In the event, with respect to a Serviced Trust Mortgage Loan with a related letter of credit, it is determined by the Master Servicer that a draw under such letter of credit has become necessary under the terms thereof prior to the assignment under clause (B) of the preceding sentence having been effected, the Master Servicer shall direct (in writing) the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) to make such draw or to cause such draw to be made on behalf of the Trustee, and, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, use its best efforts to cause such draw to be made; provided that neither the Depositor nor the UBS Mortgage Loan Seller shall have any liability in connection with the determination to make, or the making of, such draw (other than to remit the proceeds of such draw to the Master Servicer). (f) The relationship of each of the Master Servicer and the Special Servicer to the ~~Trustee~~ Trustee, to the Serviced Non-Trust Mortgage Loan Noteholders and to each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (dg) ~~In the event~~ The parties hereto acknowledge that ~~any two or more~~ each Outside Serviced Trust Mortgage ~~Loans are cross-collateralized with each other~~Loan (and, if such Outside Serviced Trust Mortgage Loan is part of a Loan Combination, the ~~Master Servicer or Special Servicer, as applicable,~~ related Outside Serviced Non-Trust Mortgage Loan(s)) will primarily be serviced and administered in accordance with the ~~terms of this~~ related Outside Servicing Agreement, ~~shall service~~ and ~~administer such Mortgage Loans as a single Mortgage Loan as~~ the servicing and ~~when it deems necessary and appropriate, consistent~~ administrative duties of the parties hereto with ~~the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially~~ respect to each Outside Serviced Trust Mortgage Loan, ~~then each other~~ any successor REO Trust Mortgage Loan ~~that is cross-collateralized~~ with it respect thereto and any related Outside Administered REO Property shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"be limited to those expressly set forth herein.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C3), Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C4)

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc), Pooling and Servicing Agreement (Commercial Mortgage Pass Through Certiticates Series 1999 C2)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and the Companion Loans (other than the Fairfield Common Pari Passu Companion Loan, except as set forth below) that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (and in the case of the Companion Loans, the Companion Holders, the Certificateholders and the Trust Fund, as a collective whole, taking into account that the Companion Loans are subordinate to the related AB Mortgage Loans to the extent set forth in the related Intercreditor Agreement) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of the Companion Loans, the related Intercreditor Agreement, and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided, in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause the Master Servicer or the Special Servicer, as the case may be, to violate the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; provided~~, however~~, that the Master Servicer shall continue to ~~collect information~~ receive payments, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. The parties hereto acknowledge that, pursuant to the Fairfield Commons Intercreditor Agreement: (i) until the Fairfield Commons Pari Passu Companion Loan is included in the Series 2003-C5 Securitization, the Fairfield Commons Total Loan is to be serviced by the Master Servicer and the Special Servicer under this Agreement, as generally contemplated in this Agreement; and (ii) as soon as, and for so long as, the Fairfield Commons Pari Passu Companion Loan is included in the Series 2003-C5 Securitization, the Fairfield Commons Total Loan is to be serviced and administered by the Series 2003-C5 Master Servicer and the Series 2003-C5 Special Servicer in accordance with the Series 2003-C5 Pooling and Servicing Agreement (provided that the Master Servicer shall be responsible for performing such services with respect to the Fairfield Commons Total Loan as are set forth in this Agreement); and (iii) if, after being included in the Series 2003-C5 Securitization, the Fairfield Commons Pari Passu Companion Loan is removed from the Series 2003-C5 Securitization, by sale, repurchase, or otherwise, the Fairfield Commons Total Loan will again be serviced and administered by the Master Servicer and Special Servicer in accordance with this Agreement. For so long as the Fairfield Commons Pooled Mortgage Loan or any related REO Loan are part of the Mortgage Pool and are being serviced and administered under the Series 2003-C5 Pooling and Servicing Agreement, the Master Servicer shall use reasonable efforts to monitor the performance and, to the extent that it has standing to do so, enforce the obligations of the Series 2003-C5 Master Servicer and the Series 2003-C5 Special Servicer, respectively, under such Series 2003-C5 Pooling and Servicing Agreement. Such enforcement, including the legal prosecution of claims and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as the Master Servicer, in its reasonable judgment, would require were it the owner of the Fairfield Commons Total Loan. The reasonable costs and expenses incurred by the Master Servicer in connection with such enforcement shall be paid by, and reimbursable as, Servicing Advances. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered 100 by the Trustee and, pursuant to the Intercreditor Agreements, the Companion Holders, to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the ~~Trustee~~ Trustee, the Companion Holders or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(j). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's as applicable, representative capacity or (ii) take any action with the intent to cause, or which actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event ~~that any two or more Mortgage Loans are cross-collateralized with each other~~shall the Master Servicer, the ~~Master Servicer~~ Trustee or ~~Special Servicer,~~ the Fiscal Agent make a Servicing Advance with respect to any Companion Loan to the extent the related Pooled Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Servicing and administration of each Companion Loan shall continue hereunder for so long as ~~applicable,~~ the corresponding Pooled Mortgage Loan or any related REO Property is part of the Trust Fund or for such longer period as any amounts remain outstanding that are payable by the related Companion Holder to or for the benefit of the Trust or any party hereto in accordance with the ~~terms~~ related Intercreditor Agreement. (f) Neither the Master Servicer nor the Special Servicer shall have any liability for the failure of ~~this Agreement, shall service and administer such Mortgage Loans as a single~~ any Mortgage Loan ~~as and when it deems necessary and appropriate, consistent with~~ Seller to perform its obligations under the ~~Servicing Standard. If any Cross-Collateralized~~ related Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"Purchase Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Comm Mort Ps THR Certs Ser 2003-Key1)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C24)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Com Mor Sec Inc Com Mor Pass THR Cer Ser 2001-C1)

Administration of the Mortgage Loans. (a) All of the Serviced Mortgage Loans and Administered REO Properties are to be serviced and administered by the Master Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and the Special Servicer shall service and administer the Serviced Mortgage Loans and Administered REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of a Serviced Loan Combination, for the benefit of the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this Agreement, ; (iii) the ~~Insurance Policies and~~ express terms of the respective Serviced Mortgage Loans ~~and~~and any and all related intercreditor, co-lender or similar agreements (including with respect to performing the duties of the holders of the respective Serviced Mortgage Loans thereunder (to the extent not inconsistent with this Agreement and to the extent consistent with the Servicing Standard)); and (iv) to the extent consistent with the foregoing, the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Serviced Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the ~~foregoing,~~ foregoing and subject to Section 3.21, (i) the Master Servicer shall service and administer all of the Performing Serviced Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans~~ Loan and Administered REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially~~ Performing Serviced Mortgage Loans ~~and REO Properties~~ as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to ~~Section~~ Sections 3.01(a), 3.20, 3.27 and 6.11, the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone (or, to the extent contemplated by Section 3.22 of this Agreement, through subservicers), to do or cause to be done any and all things in connection with ~~such~~ the servicing and administration ~~which~~ contemplated by Section 3.01(a) that it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is ~~hereby~~ authorized and empowered by the Trustee and, to the extent provided in the related Co-Lender Agreement, each related Serviced Non-Trust Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan Noteholder or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections ~~3.08~~ 3.01(a), 3.20, 6.11 and ~~3.20~~3.27, any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or ~~discharge~~discharge or of assignment, and all other comparable instruments; and (iv) any -133- and all instruments that such party may be required to execute on behalf of the Trustee in connection with the defeasance of a Serviced Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Co-Lender Agreement; and, with respect to each Loan Combination, the parties hereto further recognize the respective rights and obligations of the Trust, as holder of the related Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan Noteholder(s) under the related Co-Lender Agreement. (d) With respect to any Serviced Loan Combination, in the event that neither the related Trust Mortgage Loan nor the related REO Property (or any interest therein) is an asset of the Trust Fund and, except as contemplated in the second paragraph of this Section 3.01(d), in accordance with the related Co-Lender Agreement, the servicing and administration of such Serviced Loan Combination and any related REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Serviced Loan Combination or (ii) if expressly provided for in the related Co-Lender Agreement) the Master Servicer and, if such Serviced Loan Combination is then being specially serviced hereunder or the related Mortgaged Property has become an REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Serviced Loan Combination and the related Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Serviced Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Serviced Loan Combination or any related REO Property, as applicable, has not been entered into as contemplated by the related Co-Lender Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Co-Lender Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Serviced Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such Serviced Loan Combination and/or any related REO Property, for the benefit of the respective holders of such Serviced Loan Combination, under this Agreement as if such Serviced Loan Combination or any related REO Property were the sole assets subject hereto, with certain references in this Agreement applicable to the Trust, the Trustee, the Certificates, the Certificateholders (or any subgroup thereof) or any representative of any such Certificateholders, all being construed to refer to such similar terms as are applicable to the then current holder of the Mortgage Note for the related Serviced Combination Trust Mortgage Loan. (e) The Master Servicer shall use efforts consistent with the Servicing Standard to have prepared, executed (with the cooperation of the Depositor, in the case of a Xxxxxx Trust Mortgage Loan, and the related Unaffiliated Mortgage Loan Seller, in the case of a Non-Xxxxxx Trust Mortgage Loan, in obtaining requisite signatures, if applicable) and delivered by the applicable party (and included in the Servicing File), not later than the later of (i) 30 days following the Master Servicer's receipt of the subject franchisor comfort letter, guaranty of payment or letter of credit and (ii) the expiration of the period that may be required for such transfer or assignment pursuant to the terms of the applicable franchisor comfort letter, guaranty of payment or letter of credit, if any, (A) with respect to any Serviced Mortgage Loan secured by a hospitality property (as identified on Schedule VI hereto) (and with respect to which a franchise agreement constitutes part of the related Mortgage File on the Closing Date), any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related franchisor comfort letter; and (B) with respect to any Serviced Mortgage Loan that has a related guaranty or letter of credit that constitutes part of the related Mortgage File on the Closing Date, any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related guaranty of payment or letter of credit. If, with respect to a Serviced Trust Mortgage Loan with a related letter of credit, it is determined by the Master Servicer that a draw under such letter of credit has become necessary under the terms thereof prior to the assignment under clause (B) of the preceding sentence having been effected, then the Master Servicer shall direct (in writing) the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan) to make such draw or to cause such draw to be made on behalf of the Trustee, and, the Depositor will, and each Unaffiliated Mortgage Loan Seller will be obligated under the related Mortgage Loan Purchase Agreement to, use its best efforts to cause such draw to be made; provided that neither the Depositor nor any Unaffiliated Mortgage Loan Seller shall have any liability in connection with the determination to make, or the making of, such draw (other than to remit the proceeds of such draw to the Master Servicer). (f) The relationship of each of the Master Servicer and the Special Servicer to the ~~Trustee~~ Trustee, to the Serviced Non-Trust Mortgage Loan Noteholders and to each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or or, except as set forth in this Agreement, agent. (dg) In The parties hereto acknowledge that each Outside Serviced Trust Mortgage Loan and the ~~event that any two or more~~ related Outside Serviced Non-Trust Mortgage ~~Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable,~~ Loan(s) will primarily be serviced and administered in accordance with the ~~terms of this~~ related Outside Servicing Agreement, ~~shall service~~ and ~~administer such Mortgage Loans as a single Mortgage Loan as~~ the servicing and ~~when it deems necessary and appropriate, consistent~~ administrative duties of the parties hereto with ~~the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially~~ respect to each Outside Serviced Trust Mortgage Loan, ~~then each other~~ any successor REO Trust Mortgage Loan ~~that is cross-collateralized~~ with it respect thereto and any related Outside Administered REO Property shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"be limited to those expressly set forth herein.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2008-C1)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and Companion Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided, in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, that the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Intercreditor Agreement, the Companion Holders to execute and deliver, on behalf of the ~~Certificateholders~~ Certificateholders, the Companion Holders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(h). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer; provided, further, that, the Master Servicer and the Special Servicer shall not, without the Trustee's written consent, (A) initiate any action in the Trustee's name without indicating the Master Servicer's or Special Servicer's representative capacity or (B) cause the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event ~~that any two or more Mortgage Loans are cross-collateralized with each other,~~ shall the Master Servicer make a Servicing Advance with respect to any Companion Loan (other than the 175 West Jackson Subordinate Companion Loan and the 180 Maiden Lane Txxxx Xxxxxxxxxxx Companion Loan) to the extent the rxxxxxx Xx-Xxxxxr Loan has been paid in full or ~~Special Servicer,~~ is no longer included in the Trust Fund. (e) Servicing and administration of each Companion Loan (other than the 175 West Jackson Subordinate Companion Loan and the 180 Maiden Lane Txxxx Xxxxxxxxxxx Companion Loan) shall continue herexxxxx xxx xx xxng as ~~applicable,~~ the corresponding Co-Lender Loan or any related REO Property is part of the Trust Fund or for such longer period as any amounts payable by the related Companion Holder to or for the benefit of the Trust Fund or any party hereto in accordance with the ~~terms of~~ related Intercreditor Agreement remain due and owing; provided, however, if any Subordinate Companion Loan (other than the 175 West Jackson Subordinate Companion Loan and the 180 Maiden Lane Txxxx Xxxxxxxxxxx Companion Loan) is securitized, the Xxxxxx Xxxxxxxr's servicing obligations and duties with respect to the related Subordinate Companion Loan shall be limited to those obligations and duties described in the related Intercreditor Agreement and this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2004-C15)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans (other than the Non-Serviced Mortgage Loans) and Companion Loans (other than the Non-Serviced Companion Loans) that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control (other than with respect to a conflict regarding deliveries under the Exchange Act, the Sarbanes Oxley Act and/or the Securities Act with respect to each of the 000 Xxxxx Xxxxxx Whole Loan and the Newport Bluffs Whole Loan, in which event this Agreement will control); provided that in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans (in each case, other than the Non-Serviced Mortgage Loans and its related Companion Loan) that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan (other than ~~a Corrected~~ the Non-Serviced Mortgage ~~Loan~~Loans and their related Companion Loans) and REO Property and shall render such services with respect to all Mortgage Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, that the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. The parties hereto acknowledge that each of the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans and their related Companion Loans are being serviced and administered under the X.X. Xxxxxx 2006-LDP8 Pooling and Servicing Agreement and the 2006-C27 Pooling and Servicing Agreement, respectively. The Master Servicer, the Special Servicer, the Trustee, the Paying Agent and the Co-Trustee shall have no obligation or authority (i) to service and administer the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan, the 2006-C27 Serviced Mortgage Loans or their related Companion Loans (except for the limited duties with respect to the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans expressly provided herein), (ii) to supervise the X.X. Xxxxxx 2006-LDP8 Master Servicer No. 1, the X.X. Xxxxxx 2006-LDP8 Special Servicer, the X.X. Xxxxxx 2006-LDP8 Trustee, the 2006-C27 Master Servicer, the 2006-C27 Special Servicer or the 2006-C27 Trustee or (iii) to make Servicing Advances or, with respect to the 2006-C27 Serviced Mortgage Loans only, P&I Advances (except to the limited extent described in Section 4.03 with respect to P&I Advances to be made by the Master Servicer or the Trustee on the 2006-C27 Serviced Mortgage Loans). In addition to any other obligations expressly set forth herein by specific reference to any or all of the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan or the 2006-C27 Serviced Mortgage Loans, the Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have the following obligations with respect to the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans, as the case may be: (i) The Trustee and the Paying Agent shall have the obligations described under Section 2.02 with respect to the Mortgage File for the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans; (ii) Each of the Master Servicer, the Special Servicer and the Trustee shall have the obligations applicable to such party under Section 2.03 with respect to the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans; (iii) The Master Servicer shall have the obligations described under Sections 3.04 and 3.05 with respect to all amounts received from the X.X. Xxxxxx 2006-LDP8 Master Servicer No. 1 and the 2006-C27 Master Servicer with respect to the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans; (iv) The Trustee shall have the obligations described under Section 3.10 with respect to the Mortgage File for the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loan; (v) Upon receipt of information and reports on the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans from the X.X. Xxxxxx 2006-LDP8 Master Servicer No. 1, respectively and the 2006-C27 Master Servicer, the Master Servicer shall include such information in the reports and notices required under Section 3.12; (vi) The Master Servicer and the Paying Agent shall each have the obligations applicable to such party under Section 3.15 with respect to information and reports it has received regarding the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans; (vii) Each of the Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have the obligations applicable to such party under Section 3.18 with respect to the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans; and (viii) The Master Servicer shall have the obligations described under Section 3.19(a) with respect to any Prepayment Interest Shortfall on the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans. The obligation of the Master Servicer to provide information and collections to the Paying Agent and the Certificateholders with respect to the X.X. Xxxxxx 2006-LDP8 Serviced Mortgage Loan and the 2006-C27 Serviced Mortgage Loans shall be dependent on its receipt of the corresponding information and collections from the X.X. Xxxxxx 2006-LDP8 Master Servicer Xx. 0, xxx X.X. Xxxxxx 2006-LDP8 Special Servicer, the 2006-C27 Master Servicer or the 2006-C27 Special Servicer, as the case may be. With respect to the Serviced Pari Passu Mortgage Loans, in the event such Serviced Pari Passu Mortgage Loan or any successor REO Loan is no longer part of the Mortgage Pool, then (upon request) the Master Servicer and the Special Servicer will continue to service and administer the related Loan Pair or any related REO Property, as and to the extent contemplated by the related Intercreditor Agreement, until a replacement servicing agreement is in place. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Intercreditor Agreement, the Companion Holders to execute and deliver, on behalf of the ~~Certificateholders~~ Certificateholders, the Companion Holders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(h). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer; provided, further, that, the Master Servicer and the Special Servicer shall not, without the Trustee’s written consent, (A) initiate any action in the Trustee’s name without indicating the Master Servicer’s or Special Servicer’s representative capacity or (B) cause the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event ~~that any two or more Mortgage Loans are cross-collateralized with each other,~~ shall the Master Servicer make a Servicing Advance with respect to any Companion Loan to the extent the related Co-Lender Loan has been paid in full or ~~Special Servicer,~~ is no longer included in the Trust Fund. (e) Servicing and administration of each Companion Loan (other than the Non-Serviced Companion Loan) shall continue hereunder for so long as ~~applicable,~~ the corresponding Co-Lender Loan (other than with respect to the Non-Serviced Mortgage Loans) or any related REO Property is part of the Trust Fund or for such longer period as any amounts payable by the related Companion Holder to or for the benefit of the Trust Fund or any party hereto in accordance with the ~~terms of~~ related Intercreditor Agreement remain due and owing; provided, however, if any Companion Loan (other than a Non-Serviced Companion Loan) is securitized, the Master Servicer’s servicing obligations and duties with respect to the related Companion Loan shall be limited to those obligations and duties described in the related Intercreditor Agreement and this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C28)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2007-9)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of any Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Noteholder(s)) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of a Loan Combination, the terms of the related Loan Combination Intercreditor Agreement (which, in the event of any conflict with this Agreement, shall control), to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, and ~~prepare~~ prepare, or cause to be prepared, all reports to required hereunder, except for the ~~Trustee required hereunder~~ reports specified herein as prepared by the Special Servicer, with respect to ~~any~~ the Specially Serviced Mortgage Loans as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ the Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided further, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a), Section 6.11 and Section 6.12, the Master Servicer and the Special Servicer each shall have full power and authority, acting ~~alone~~alone (or, pursuant to Section 3.22, through one or more Sub-Servicers), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Loan Combination Intercreditor Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee ~~or any of them:~~ and each such Non-Trust Noteholder, (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20, Section 6.11 and ~~3.20~~Section 6.12, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name (or, in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's name) without indicating the Master Servicer's or Special Servicer's as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer,~~ venture or partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event shall the Master Servicer, the Trustee or any Fiscal Agent make a Servicing Advance with respect to any Non-Trust Loan to the extent the related Trust Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Neither the Master Servicer nor the Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement. (f) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Loan Combination Intercreditor Agreement. The parties hereto further recognize the respective rights and obligations of the related Non-Trust Noteholder(s) under the related Loan Combination Intercreditor Agreement, including with respect to (i) the allocation of collections on or in respect of the applicable Loan Combination, and the making of payments, to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, (ii) the allocation of expenses and/or losses relating to the subject Loan Combination to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, and (iii) the right of a B-Noteholder or its designee (in the case of an A/B Loan Combination) or a Westchester Subordinate Noteholder (in the case of the Westchester Loan Combination) to purchase the related Trust Mortgage Loan in accordance with the related Loan Combination Intercreditor Agreement. (g) With respect to any Loan Combination, in the event that neither the related Trust Mortgage Loan nor the related REO Property (or any ~~two or more Mortgage Loans are cross-collateralized with each other~~interest therein) is an asset of the Trust Fund and, except as contemplated in the ~~Master Servicer or Special Servicer, as applicable~~second paragraph of this Section 3.01(g), in accordance with the ~~terms~~ related Loan Combination Intercreditor Agreement, the servicing and administration of such Loan Combination and any related REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in the related Loan Combination Intercreditor Agreement) the Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Mortgaged Property has become an REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related REO Property, as applicable, has not been entered into as contemplated by the related Loan Combination Intercreditor Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Loan Combination Intercreditor Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such ~~Mortgage Loans~~ Loan Combination and/or any related REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as ~~a single Mortgage~~ if such Loan ~~as and when it deems necessary and appropriate, consistent with~~ Combination or any related REO Property were the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"sole assets subject hereto.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-McP1)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans ~~that it is obligated~~ (other than the 2004-C10 Serviced Mortgage Loan) and Companion Loans (other than the 11 Madison Avenue Companion Loans) txxx xxxx xx xxxxxated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided, in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans (in each case, other than the 2004-C10 Serviced Mortgage Loan and its related Companion Loans) that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan (other than ~~a Corrected~~ the 2004-C10 Serviced Mortgage ~~Loan~~Loan and its related Companion Loans) and REO Property and shall render such services with respect to all Mortgage Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein~~. (b) Subject to Section 3.01(a)~~; provided, further, however, that the Master Servicer ~~and~~ shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer ~~each shall have full power and authority, acting alone,~~ to ~~do or cause~~ provide sufficient information to ~~be done any and all things in connection~~ the Master Servicer to comply with such ~~servicing and administration which it may deem necessary~~ duties or ~~desirable~~failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, that the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. ~~Without limiting~~ All references herein to the ~~generality of the foregoing, each~~ respective duties of the Master Servicer and the Special Servicer, and to the areas in ~~its own name~~which they may exercise discretion, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and shall be subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer3. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2004-C12)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the ~~Trustee~~Owner Trust, and in the best interests and for the benefit of the ~~Certificateholders~~holders of the Bonds and the Owner Trust Certificates, in accordance with any and all applicable laws and the terms of this ~~Agreement, the Insurance Policies~~ Agreement and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section ~~3.21~~3.20, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Indenture Trustee and the Owner Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans and~~ Loans, REO Properties (and the related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. (b) Subject to Section 3.01(a), the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Owner Trust and the Indenture Trustee to execute and deliver, on behalf of the ~~Certificateholders~~ Owner Trust and the ~~Trustee or any of them~~Indenture Trustee: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage Loan File on the related Mortgaged ~~Property and related collateral~~Property; (ii) in accordance with the Servicing Standard and subject to Sections ~~3.08~~ 3.08, 3.20 and ~~3.20~~3.21, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage Loan File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Owner Trust and the Indenture Trustee shall, at the written request of ~~a Servicing~~ an Authorized Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer ~~and~~ or the Special Servicer, as the case may be, any limited powers of attorney (substantially in the form of Exhibit E attached hereto) and other documents necessary or appropriate to enable ~~them~~ it to carry out ~~their~~ its servicing and administrative duties hereunder; , provided, however, that none of the Owner Trust, the Owner Trustee or the Indenture Trustee shall ~~not~~ be held liable for any misuse of any such power of attorney by the Master Servicer or the Special ~~Servicer~~Servicer and each of the Master Servicer and the Special Servicer hereby agree to indemnify the Owner Trust, the Owner Trustee and the Indenture Trustee against, and hold the Owner Trust, the Owner Trustee and the Indenture Trustee harmless from, any loss or liability arising from any misuse by it of such power of attorney. (c) The relationship of each of the Master Servicer and the Special Servicer to the Owner Trust, and to the Owner Trustee, the Indenture Trustee or the Fiscal Agent, under this Agreement is intended by the parties to be and shall be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Servicing Agreement (Imh Assets Corp Impac CMB Trust 1998 C1 Col Mor Bond 1998 C1)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, and in the best interests and for the benefit of the Certificateholders and the Certificate Insurer, as subrogee of the Class A Certificateholders, in accordance with any and all applicable laws and the terms of this Agreement, the Insurance Policies and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the 77 related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. (b) Subject to Section 3.01(a)) and the terms and provisions of this Agreement, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; , (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, and in the best interests and for the benefit of the Certificateholders, in accordance with any and all applicable laws and the terms of this Agreement, the Insurance Policies and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. (b) Subject to Section 3.01(a), the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any ~~Cross-~~Cross- Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans (other than the 2005-C17 Serviced Mortgage Loans) and Companion Loans (other than the One & Two International Place Companion Loan and the 450 West 33rd Street Companion Loan) that it each is obligated to ~~service and administer pursuant~~ servicx xxx xxxxxxxxxx xxxsuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided that in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans (in each case, other than the 2005-C17 Serviced Mortgage Loans and their related Companion Loans) that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan (other than ~~a Corrected~~ the 2005-C17 Serviced Mortgage ~~Loan~~Loans and their related Companion Loans) and REO Property and shall render such services with respect to all Mortgage Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, that the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. The parties hereto acknowledge that the 2005-C17 Serviced Mortgage Loans and their related Companion Loans are being serviced and administered under the 2005-C17 Pooling and Servicing Agreement. The Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have no obligation or authority (i) to service and administer the 2005-C17 Serviced Mortgage Loans or their related Companion Loans (except for the limited duties with respect to the 2005-C17 Serviced Mortgage Loans expressly provided herein), (ii) to supervise the 2005-C17 Master Servicer, the 2005-C17 Special Servicer or the 2005-C17 Trustee or (iii) to make Servicing Advances or P&I Advances (except to the limited extent described in Section 4.03 with respect to P&I Advances to be made by the Master Servicer or the Trustee on the 2005-C17 Serviced Mortgage Loans). In addition to any other obligations expressly set forth herein by specific reference to either or both of the 2005-C17 Serviced Mortgage Loans, the Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have the following obligations with respect to the 2005-C17 Serviced Mortgage Loans, as the case may be: (i) The Trustee and the Paying Agent shall have the obligations described under Section 2.02 with respect to the Mortgage File for the 2005-C17 Serviced Mortgage Loans; (ii) Each of the Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have the obligations applicable to such party under Section 2.03 with respect to the 2005-C17 Serviced Mortgage Loans; (iii) The Master Servicer shall have the obligations described under Sections 3.04 and 3.05 with respect to all amounts received from the 2005-C17 Master Servicer with respect to the 2005-C17 Serviced Mortgage Loans; (iv) The Trustee shall have the obligations described under Section 3.10 with respect to the Mortgage File for the 2005-C17 Serviced Mortgage Loans; (v) Upon receipt of information and reports on the 2005-C17 Serviced Mortgage Loans from the 2005-C17 Master Servicer, the Master Servicer shall include such information in the reports and notices required under Section 3.12; (vi) The Master Servicer and the Paying Agent shall each have the obligations applicable to such party under Section 3.15 with respect to information and reports it has received regarding the 2005-C17 Serviced Mortgage Loans; (vii) Each of the Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have the obligations applicable to such party under Section 3.18 with respect to the 2005-C17 Serviced Mortgage Loans; and (viii) The Master Servicer shall have the obligations described under Section 3.19(a) with respect to any Prepayment Interest Shortfall on the 2005-C17 Serviced Mortgage Loans. The obligation of the Master Servicer to provide information and collections to the Paying Agent and the Certificateholders with respect to the 2005-C17 Serviced Mortgage Loans shall be dependent on its receipt of the corresponding information and collections from the 2005-C17 Master Servicer or the 2005-C17 Special Servicer. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Intercreditor Agreement, the Companion Holders to execute and deliver, on behalf of the ~~Certificateholders~~ Certificateholders, the Companion Holders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(h). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer; provided, further, that, the Master Servicer and the Special Servicer shall not, without the Trustee's written consent, (A) initiate any action in the Trustee's name without indicating the Master Servicer's or Special Servicer's representative capacity or (B) cause the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event ~~that any two or more Mortgage Loans are cross-collateralized with each other,~~ shall the Master Servicer make a Servicing Advance with respect to any Companion Loan to the extent the related Co-Lender Loan has been paid in full or ~~Special Servicer,~~ is no longer included in the Trust Fund. (e) Servicing and administration of each Companion Loan (other than the One & Two International Place Companion Loan and the 450 West 33rd Street Companion Loan) shall continue hereunder for so xxxx xx xxx xxxxxxxxnding Co-Lender Loan (other than the One & Two International Place Loan and the 450 West 33rd Street Loan) or any related REO Property is part of the Xxxxx Xxxx xx xxx xuch longer period as ~~applicable,~~ any amounts payable by the related Companion Holder to or for the benefit of the Trust Fund or any party hereto in accordance with the ~~terms of~~ related Intercreditor Agreement remain due and owing; provided, however, if any Companion Loan (other than the One & Two International Place Companion Loan and the 450 West 33rd Street Companion Loan) is securitized, the Master Servixxx'x xxxxxxxxx xxxxgations and duties with respect to the related Companion Loan shall be limited to those obligations and duties described in the related Intercreditor Agreement and this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C18)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and Companion Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided that in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, that the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. With respect to the Hyatt Center Loan, in the event that it or any successor REO Loan is no longer part of the Mortgage Pool, then (upon request) the Master Servicer and the Special Servicer will continue to service and administer the related Loan Pair or any related REO Property, as and to the extent contemplated by the related Intercreditor Agreement. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Intercreditor Agreement, the Companion Holders to execute and deliver, on behalf of the ~~Certificateholders~~ Certificateholders, the Companion Holders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(h). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer; provided, further, that, the Master Servicer and the Special Servicer shall not, without the Trustee's written consent, (A) initiate any action in the Trustee's name without indicating the Master Servicer's or Special Servicer's representative capacity or (B) cause the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event ~~that any two or more Mortgage Loans are cross-collateralized with each other,~~ shall the Master Servicer make a Servicing Advance with respect to any Companion Loan to the extent the related Co-Lender Loan has been paid in full or ~~Special Servicer,~~ is no longer included in the Trust Fund. (e) Servicing and administration of each Companion Loan shall continue hereunder for so long as ~~applicable,~~ the corresponding Co-Lender Loan or any related REO Property is part of the Trust Fund or for such longer period as any amounts payable by the related Companion Holder to or for the benefit of the Trust Fund or any party hereto in accordance with the ~~terms of~~ related Intercreditor Agreement remain due and owing; provided, however, if any Companion Loan is securitized, the Master Servicer's servicing obligations and duties with respect to the related Companion Loan shall be limited to those obligations and duties described in the related Intercreditor Agreement and this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C22)

Administration of the Mortgage Loans. (a) All of the Serviced Mortgage Loans and Administered REO Properties are to be serviced and administered by the Master Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and the Special Servicer shall service and administer the Serviced Mortgage Loans and Administered REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of a Serviced Loan Combination, for the benefit of the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this Agreement, ; (iii) the ~~Insurance Policies and~~ express terms of the respective Serviced Mortgage Loans ~~and~~and any and all related intercreditor, co-lender or similar agreements (including with respect to performing the duties of the holders of the respective Serviced Mortgage Loans thereunder (to the extent not inconsistent with this Agreement and to the extent consistent with the Servicing Standard)); and (iv) to the extent consistent with the foregoing, the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Serviced Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the ~~foregoing,~~ foregoing and subject to Section 3.21, (i) the Master Servicer shall service and administer all of the Performing Serviced Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans~~ Loan and Administered REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially~~ Performing Serviced Mortgage Loans ~~and REO Properties~~ as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to ~~Section~~ Sections 3.01(a), 3.20, 6.11 and 6.12, the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone (or, to the extent contemplated by Section 3.22 of this Agreement, through subservicers), to do or cause to be done any and all things in connection with ~~such~~ the servicing and administration ~~which~~ contemplated by Section 3.01(a) that it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is ~~hereby~~ authorized and empowered by the Trustee and, to the extent provided in the related Co-Lender Agreement, each related Serviced Non-Trust Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan Noteholder or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections ~~3.08~~ 3.01(a), 3.20, 6.11 and ~~3.20~~6.12, any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or ~~discharge~~discharge or of assignment, and all other comparable instruments; and (iv) any -146- and all instruments that such party may be required to execute on behalf of the Trustee in connection with the defeasance of a Serviced Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Co-Lender Agreement; and, with respect to each Loan Combination, the parties hereto further recognize the respective rights and obligations of the Trust, as holder of the related Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan Noteholder(s) under the related Co-Lender Agreement. (d) With respect to any Serviced Loan Combination, in the event that neither the related Trust Mortgage Loan nor the related REO Property (or any interest therein) is an asset of the Trust Fund and, except as contemplated in the second paragraph of this Section 3.01(d), in accordance with the related Co-Lender Agreement, the servicing and administration of such Serviced Loan Combination and any related REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Serviced Loan Combination or (ii) if expressly provided for in the related Co-Lender Agreement) the Master Servicer and, if such Serviced Loan Combination is then being specially serviced hereunder or the related Mortgaged Property has become an REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Serviced Loan Combination and the related Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Serviced Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Serviced Loan Combination or any related REO Property, as applicable, has not been entered into as contemplated by the related Co-Lender Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Co-Lender Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Serviced Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such Serviced Loan Combination and/or any related REO Property, for the benefit of the respective holders of such Serviced Loan Combination, under this Agreement as if such Serviced Loan Combination or any related REO Property were the sole assets subject hereto, with certain references in this Agreement applicable to the Trust, the Trustee, the Certificates, the Certificateholders (or any subgroup thereof) or any representative of any such Certificateholders, all being construed to refer to such similar terms as are applicable to the then current holder of the Mortgage Note for the related Serviced Combination Trust Mortgage Loan. (e) The Master Servicer shall use efforts consistent with the Servicing Standard to have prepared, executed (with the cooperation of the Depositor, in the case of a Lehman Trust Mortgage Loan, and the related Unaffiliatex Xxxxgage Loan Seller, in the case of a Non-Lehman Trust Mortgage Loan, in obtaining requisite signxxxxxx, if applicable) and delivered by the applicable party (and included in the Servicing File), not later than the later of (i) 30 days following the Master Servicer's receipt of the subject franchisor comfort letter, guaranty of payment or letter of credit and (ii) the expiration of the period that may be required for such transfer or assignment pursuant to the terms of the applicable franchisor comfort letter, guaranty of payment or letter of credit, if any, (A) with respect to any Serviced Mortgage Loan secured by a hospitality property (as identified on Schedule VI hereto) (and with respect to which a franchise agreement constitutes part of the related Mortgage File on the Closing Date), any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related franchisor comfort letter; and (B) with respect to any Serviced Mortgage Loan that has a related guaranty or letter of credit that constitutes part of the related Mortgage File on the Closing Date, any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related guaranty of payment or letter of credit. In the event, with respect to a Serviced Trust Mortgage Loan with a related letter of credit, it is determined by the Master Servicer that a draw under such letter of credit has become necessary under the terms thereof prior to the assignment under clause (B) of the preceding sentence having been effected, the Master Servicer shall direct (in writing) the Depositor (in the case of a Lehman Trust Mortgage Loan) or the related Unaffiliated Xxxxxage Loan Seller (in the case of a Non-Lehman Trust Mortgage Loan) to make such draw or to cauxx xxxh draw to be made on behalf of the Trustee, and, the Depositor will, and each Unaffiliated Mortgage Loan Seller will be obligated under the related Mortgage Loan Purchase Agreement to, use its best efforts to cause such draw to be made; provided that neither the Depositor nor any Unaffiliated Mortgage Loan Seller shall have any liability in connection with the determination to make, or the making of, such draw (other than to remit the proceeds of such draw to the Master Servicer). (f) The relationship of each of the Master Servicer and the Special Servicer to the ~~Trustee~~ Trustee, to the Serviced Non-Trust Mortgage Loan Noteholders and to each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or or, except as set forth in this Agreement, agent. (dg) In The parties hereto acknowledge that each Outside Serviced Trust Mortgage Loan and the ~~event that any two or more~~ related Outside Serviced Non-Trust Mortgage ~~Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable,~~ Loan(s) will primarily be serviced and administered in accordance with the ~~terms of this~~ related Outside Servicing Agreement, ~~shall service~~ and ~~administer such Mortgage Loans as a single Mortgage Loan as~~ the servicing and ~~when it deems necessary and appropriate, consistent~~ administrative duties of the parties hereto with ~~the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially~~ respect to each Outside Serviced Trust Mortgage Loan, ~~then each other~~ any successor REO Trust Mortgage Loan ~~that is cross-collateralized~~ with it respect thereto and any related Outside Administered REO Property shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"be limited to those expressly set forth herein.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2007-C6)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and the Crowne Plaza Companion Loan that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Crowne Plaza Companion Loan, the Companion Holder, in accordance with any and all applicable ~~laws~~ laws, the terms of this Agreement and the terms of ~~this Agreement, the Insurance Policies and~~ the respective Mortgage Loans and, if applicable, the Crowne Plaza Companion Loan and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Crowne Plaza Companion Loan that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and the Crowne Plaza Companion Loan and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; provided~~, however~~, that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans and the Crowne Plaza Companion Loan it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to the Co-Lender Agreement, the Companion Holder to execute and deliver, on behalf of the ~~Certificateholders~~ Certificateholders, the Companion Holder and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent~~. (d) In~~ . Unless the ~~event that any two or more Mortgage Loans are cross-collateralized with each other~~same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)

Administration of the Mortgage Loans. (a) All of the Serviced Loans and Serviced REO Properties (which does not include the Non-Serviced Loan Combinations) are to be serviced and administered by the Master Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and the Special Servicer shall service and administer the ~~Mortgage~~ Serviced Loans and Serviced REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of the Companion Loans, on behalf of the related Companion Loan Noteholders), as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this ~~Agreement~~Agreement (and, with respect to a Loan Combination, the ~~Insurance Policies~~ related Co-Lender Agreement) and the respective ~~Mortgage Loans and,~~ Serviced Loans; and (iii) to the extent consistent with the foregoing, the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group, if any, as a single Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the foregoing, and subject to Section ~~3.21~~3.22, (i) the Master Servicer shall service and administer all of the Performing Serviced Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans~~ Loan and Serviced REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially~~ the Performing Serviced ~~Mortgage~~ Loans ~~and REO Properties~~ as are specifically provided for herein~~. (b) Subject~~ . All references herein to ~~Section 3.01(a),~~ the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each respective duties of the Master Servicer and the Special Servicer, and to the areas in ~~its own name~~which they may exercise discretion, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and shall be subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer3. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C2)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)

Administration of the Mortgage Loans. (a) Each of the Master ~~Servicer~~ Servicers and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of any Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Noteholder(s)) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of a Loan Combination, the terms of the related Loan Combination Intercreditor Agreement (which, in the event of any conflict with this Agreement, shall control), to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master ~~Servicer~~ Servicers shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as are specifically provided for herein; provided that the Master Servicers shall continue to ~~which a~~ receive payments, and prepare, or cause to be prepared, all reports required hereunder, except for the reports specified herein, as prepared by the Special Servicer with respect to the Specially Serviced Mortgage Loans, as if no Servicing Transfer Event ~~has occurred,~~ had occurred and ~~(y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder~~ with respect to ~~any Specially Serviced Mortgage Loans and~~ the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ the Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, that neither Master Servicer shall be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to such Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicers and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a), Section 6.11 and, if applicable, Section 6.12, the Master ~~Servicer~~ Servicers and the Special Servicer each shall have full power and authority, acting ~~alone~~alone (or, pursuant to Section 3.22, through one or more Sub-Servicers), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master ~~Servicer~~ Servicers and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Loan Combination Intercreditor Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee ~~or any of them:~~ and each such Non-Trust Noteholder, (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08 and~~ Section 3.20, Section 6.11 and, if applicable, Section 6.12, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the applicable Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by such Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by ~~the~~ either Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicers nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name (or, in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's name) without indicating the representative capacity of the applicable Master Servicer or the Special Servicer, as the case may be; or (ii) take any action with the intent to cause, and that actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master ~~Servicer~~ Servicers and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer,~~ venture or partner or agent. No Person acting in any one or more of such capacities shall be responsible for the actions of or failure to act by another Person acting in any one or more of such capacities. (d) In Notwithstanding anything herein to the contrary, in no event shall either Master Servicer, the Trustee or any Fiscal Agent make a Servicing Advance with respect to any Non-Trust Loan to the extent the related Trust Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Neither the Master Servicers nor the Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement. (f) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Loan Combination Intercreditor Agreement. The parties hereto further recognize the respective rights and obligations of the related Non-Trust Noteholder(s) under the related Loan Combination Intercreditor Agreement, including with respect to (i) the allocation of collections on or in respect of the applicable Loan Combination, and the making of payments, to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, (ii) the allocation of expenses and/or losses relating to the subject Loan Combination to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, and (iii) the right of a B-Note Loan Holder or its designee to purchase the related Trust Mortgage Loan in accordance with the related Loan Combination Intercreditor Agreement. (g) With respect to any Loan Combination that includes a Trust Mortgage Loan, in the event that either the related Trust Mortgage Loan or the related Loan Combination REO Property (or any ~~two or more Mortgage Loans are cross-collateralized with each other~~interest therein) is no longer an asset of the Trust Fund and, except as contemplated in the ~~Master Servicer or Special Servicer, as applicable~~second paragraph of this Section 3.01(g), in accordance with the ~~terms~~ related Loan Combination Intercreditor Agreement, the servicing and administration of such Loan Combination and any related Loan Combination REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in or pursuant to the related Loan Combination Intercreditor Agreement) the applicable Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Loan Combination Mortgaged Property has become a Loan Combination REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the applicable Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Loan Combination Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Loan Combination that includes a Trust Mortgage Loan, if at any time neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related Loan Combination REO Property, as applicable, has not been entered into as contemplated by the related Loan Combination Intercreditor Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Loan Combination Intercreditor Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the applicable Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such ~~Mortgage Loans~~ Loan Combination and/or any related Loan Combination REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as ~~a single Mortgage~~ if such Loan ~~as and when it deems necessary and appropriate, consistent~~ Combination or any related Loan Combination REO Property were the sole assets subject hereto but shall not be required to make any Advances with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect ~~of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"~~thereto.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-3)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans (other than the 2004-C10 Serviced Mortgage Loan) and Companion Loans (other than the 00 Xxxxxxx Xxxxxx Companion Loans) that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided, in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans (other than the 2004-C10 Serviced Mortgage Loan and its related Companion Loans) that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan (other than ~~a Corrected~~ the 2004-C10 Serviced Mortgage ~~Loan~~Loan and its related Companion Loans) and REO Property and shall render such services with respect to all Mortgage Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. (b) Subject to Section 3.01(a), the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, further, however, that the ~~Trustee~~ Master Servicer shall not be ~~held~~ liable for ~~any misuse of any~~ its failure to comply with such ~~power of attorney~~ duties insofar as such failure results from a failure by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".Special

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Commercial Mortgage Securities Inc)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and Companion Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of each Companion Loan, on behalf of the related Companion Loan Noteholder), as determined in the good faith and reasonable judgement of the Master Servicer or the Special Servicer, as the case may be, in accordance with any and all applicable ~~laws and~~ laws, in accordance with the terms of this Agreement, the ~~Insurance Policies and the~~ respective Mortgage Loans or Companion Loans, the Co-Lender and Servicing Agreements (in the case of the respective Loan Pairs) and any Residual Value Insurance Policies or Lease Enhancement Policies (in the case of the respective Credit Lease Loans) and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the foregoing, and subject to ~~Section~~ SECTION 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected Mortgage~~ Companion Loans that are not Specially Serviced Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced ~~Mortgage Loans~~ Loan and REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially Serviced~~ all Mortgage Loans, Companion Loans and REO Properties as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to SECTION 3.21. (b) Subject to ~~Section~~ SECTION 3.01(a), SECTION 6.11 (taking account of SECTION 6.11(b)) and SECTION 6.11A (taking account of SECTION 6.11A(b)), the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee and each Companion Loan Noteholder or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ SECTION 3.20, SECTION 6.11 (taking account of SECTION 6.11(b)) and ~~3.20~~SECTION 6.11A (taking account of SECTION 6.11A(b)), any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to ~~Section~~ SECTION 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) except as relates to a Mortgage Loan or Companion Loan that the Master Servicer or the Special Servicer, as applicable, is servicing pursuant to its respective duties herein (in which case such servicer shall give notice to the Trustee of the initiation), initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause the Trustee to be registered to do business in any state. (c) The parties hereto acknowledge that each Loan Pair is subject to the terms and conditions of the related Co-Lender and Servicing Agreement. With respect to each Loan Pair, the parties hereto recognize the respective rights and obligations of the "Lenders" under the related Co-Lender and Servicing Agreement, including with respect to the allocation of collections on or in respect of such Loan Pair in accordance with Section 4.01(a) of such Co-Lender and Servicing Agreement, the making of payments to the "Lenders" in accordance with Section 4.01(b) of such Co-Lender and Servicing Agreement and the purchase of the Mortgage Loan in such Loan Pair by the related Companion Loan Noteholder or its designee in accordance with Section 4.03 of such Co-Lender and Servicing Agreement. The Master Servicer assumes the obligations of "Master Servicer" under each Co-Lender and Servicing Agreement. In the event that the servicing and administration of any Loan Pair is to be again governed by the terms of the related Co-Lender and Servicing Agreement, as contemplated by Section 3.25(c) of such Co-Lender and Servicing Agreement, the Master Servicer and, if such Loan Pair is then being specially serviced, the Special Servicer each agree to act in such capacity under such Co-Lender and Servicing Agreement. Notwithstanding the foregoing, all of the Special Servicer's rights and obligations with respect to the Companion Loans shall be governed by this Agreement unless and until, as described in the preceding sentence, any such loan is to be specially serviced and administered under the related Co-Lender and Servicing Agreement. Where references are made in the currently operative provisions of each Co-Lender and Servicing Agreement to provisions thereof that, pursuant to Section 3.01 of such agreement, are currently inoperative, such reference shall be deemed to be a reference to the provisions hereof dealing with the same subject matter in respect of the applicable Loan Pair. (d) The relationship of each of the Master Servicer and the Special Servicer to the Trustee and the Companion Loan Noteholders under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Structured Asset Sec Corp Com Mort Pas THR Certs Ser 2000-C3)

Administration of the Mortgage Loans. (a) All of the Mortgage Loans and REO Properties are to be serviced and administered by the Master Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of a Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Mortgage Loan Noteholder(s)), as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this Agreement, ; (iii) the ~~Insurance Policies and~~ express terms of the respective Mortgage Loans ~~and~~and any and all related intercreditor, co-lender or similar agreements (including with respect to performing the duties of the holders of the respective Trust Mortgage Loans thereunder (to the extent not inconsistent with this Agreement and to the extent consistent with the Servicing Standard)); and (iv) to the extent consistent with the foregoing, the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the ~~foregoing,~~ foregoing and subject to Section 3.21, (i) the Master Servicer shall service and administer all of the Performing Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans~~ Loan and REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially Serviced~~ Performing Mortgage Loans ~~and REO Properties~~ as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to ~~Section~~ Sections 3.01(a), 3.20, 6.11 and 6.12, the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone (or, to the extent contemplated by Section 3.22 of this Agreement, through subservicers), to do or cause to be done any and all things in connection with ~~such~~ the servicing and administration ~~which~~ contemplated by Section 3.01(a) that it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is ~~hereby~~ authorized and empowered by the Trustee and, to the extent provided in the related Co-Lender Agreement, each related Non-Trust Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee and such Non-Trust Mortgage Loan Noteholder or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections ~~3.08~~ 3.01(a), 3.20, 6.11 and ~~3.20~~6.12, any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or ~~discharge~~discharge or of assignment, and all other comparable instruments; and (iv) any and all instruments that such party may be required to execute on behalf of the Trustee in connection with the defeasance of a Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Co-Lender Agreement. With respect to each Loan Combination, the parties hereto further recognize the respective rights and obligations of the Trust, as holder of the related Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan Noteholder(s) under the related Co-Lender Agreement, including with respect to: (i) the allocation of collections on or in respect of such Loan Combination, and the making of remittances, to the Trust, as holder of the related Combination Trust Mortgage Loan, and to the related Non-Trust Mortgage Loan Noteholder(s), in accordance with Section 4.01 of the related Co-Lender Agreement; (ii) the allocation of expenses and losses relating to such Loan Combination to the Trust, as holder of the related Combination Trust Mortgage Loan, and to the related Non-Trust Mortgage Loan Noteholder(s), in accordance with Section 4.02 of the related Co-Lender Agreement; and (iii) the right of one or more related Non-Trust Mortgage Loan Noteholders to purchase the related Combination Trust Mortgage Loan, in accordance with Section 4.03 of the related Co-Lender Agreement. (d) With respect to any Loan Combination, in the event that neither the related Trust Mortgage Loan nor the related REO Property is an asset of the Trust Fund and, except as contemplated in the second paragraph of this Section 3.01(d), in accordance with the related Co-Lender Agreement, the servicing and administration of such Loan Combination and any related REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in the related Co-Lender Agreement) the Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Mortgaged Property has become an REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related REO Property is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related REO Property, as applicable, has not been entered into as contemplated by the related Co-Lender Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Co-Lender Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related REO Property is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such Loan Combination and/or any related REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as if such Loan Combination or any related REO Property were the sole assets subject hereto, with certain references in this Agreement applicable to the Trust, the Trustee, the Certificates, the Certificateholders (or any subgroup thereof) or any representative of any such Certificateholders, all being construed to refer to such similar terms as are applicable to the then current holder of the Mortgage Note for the related Combination Trust Mortgage Loan. (e) The Master Servicer shall use efforts consistent with the Servicing Standard to have prepared, executed (with the cooperation of the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) in obtaining requisite signatures, if applicable) and delivered by the applicable party (and included in the Servicing File), not later than the later of (i) 30 days following the Master Servicer's receipt of the subject franchisor comfort letter, guaranty of payment or letter of credit and (ii) the expiration of the period that may be required for such transfer or assignment pursuant to the terms of the applicable franchisor comfort letter, guaranty of payment or letter of credit, if any, (A) with respect to any Mortgage Loan secured by a hospitality property (as identified on Schedule VI hereto) (and with respect to which a franchise agreement constitutes part of the related Mortgage File on the Closing Date), any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related franchisor comfort letter; and (B) with respect to any Mortgage Loan that has a related guaranty or letter of credit that constitutes part of the related Mortgage File on the Closing Date, any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related guaranty of payment or letter of credit. In the event, with respect to a Trust Mortgage Loan with a related letter of credit, it is determined by the Master Servicer that a draw under such letter of credit has become necessary under the terms thereof prior to the assignment under clause (B) of the preceding sentence having been effected, the Master Servicer shall direct (in writing) the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) to make such draw or to cause such draw to be made on behalf of the Trustee, and, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, use its best efforts to cause such draw to be made; provided that neither the Depositor nor the UBS Mortgage Loan Seller shall have any liability in connection with the determination to make, or the making of, such draw (other than to remit the proceeds of such draw to the Master Servicer). (f) The relationship of each of the Master Servicer and the Special Servicer to the ~~Trustee~~ Trustee, to the Non-Trust Mortgage Loan Noteholders and to each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C1)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and any REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, and in the best interests and for the benefit of the ~~Certificateholders,~~ Certificateholders in accordance with any and all applicable laws and the terms of this Agreement, ~~the Insurance Policies~~ and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. (b) Subject to Section 3.01(a)) and the terms and provisions of this Agreement, the Master Servicer and the Special Servicer each shall have full power and authority, acting ~~alone~~alone or, subject to Section 3.22, through Sub-Servicers, in which case the Sub-Servicers shall so act (including the execution of documents on behalf of the Master Servicer on behalf of the Trustee described in clause (i), clause (ii) and clause (iii) of the next sentence); provided, however, that execution of the documents described in clause (iii) of the next sentence shall require the consent of the Master Servicer), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder~~; provided~~. (c) Notwithstanding anything herein to the contrary, ~~however~~neither the Master Servicer nor the Special Servicer shall without the Trustee's written consent which consent shall not be unreasonably withheld or delayed (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or the Special Servicer's representative capacity, provided that solely with respect to (i) above if the Trustee has not responded to the Master Servicer's or Special Servicer's request for such consent within 5 days from the date of the Trustee's receipt of such request, the Trustee shall ~~not~~ be ~~held liable~~ deemed to have consented to such request, or (ii) take any action with the intent to cause, and which actually does cause, the Trustee to be registered to do business in any state. The Master Servicer and/or the Special Servicer shall indemnify the Trustee for any and all costs, liabilities and expenses incurred by the Trustee in connection with the negligent or willful misuse of ~~any~~ such ~~power~~ powers of attorney by the Master Servicer or the Special Servicer, as applicable. (cd) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (de) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan". (f) Within 30 days after the Closing Date, the Master Servicer shall notify each Lease Enhancement Policy Insurer and RVI Policy Insurer that (i) both the Master Servicer and the Special Servicer shall be sent notices under each Lease Enhancement Policy and RVI Policy and (ii) Xxxxx Fargo Bank Minnesota, N.A., as trustee for the registered holders of the Bank of America, N.A.--First Union National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2001-3, respectively, shall be the loss payee under each RVI Policy and shall be named the insured party under each Lease Enhancement Policy. In the event that the Master Servicer has actual knowledge of an Insured Event under any Lease Enhancement Policy or RVI Policy, the Master Servicer shall notify the Special Servicer thereof within three Business Days after learning of such event. With respect to each Lease Enhancement Policy and RVI Policy, the Master Servicer and the Special Servicer shall each review and familiarize itself with the terms and conditions relating to enforcement of claims and shall monitor the dates by which any claim must be made or any action must be taken under such policy. The Special Servicer shall prepare and file a "proof of loss" form with the Lease Enhancement Policy Insurer or the RVI Policy Insurer, as the case may be, within five Business Days after receiving notice or obtaining actual knowledge of any Insured Event under the related policy and shall diligently process any claims under such policy in accordance with the Servicing Standard. The Special Servicer shall abide by the terms and conditions relating to enforcing claims and monitor the dates by which any claim or action must be taken (including delivering any notices to the Lease Enhancement Policy Insurer or RVI Policy Insurer or performing any actions required under each policy) under each RVI Policy and Lease Enhancement Policy to realize the full value of such RVI Policy or Lease Enhancement Policy, as applicable, for the benefit of the Certificateholders. The Special Servicer shall give notice to the Master Servicer of any claim made under any Lease Enhancement Policy or RVI Policy and of any Policy Termination Event of which the Master Servicer does not already have notice. (g) In the event that the Master Servicer receives notice of any Policy Termination Event, the Master Servicer shall, within three Business Days after receipt of such notice, notify the Special Servicer, the Trustee and the Rating Agencies of such Policy Termination Event in writing. Upon receipt of such notice, the Special Servicer shall, notwithstanding that the servicing of the related Mortgage Loan may not have been transferred to the Special Servicer, address such Policy Termination Event in accordance with the Servicing Standard. Any legal fees incurred in connection with a resolution of a Policy Termination Event shall be paid by the Master Servicer as a Servicing Advance or if such advance is deemed to be a Nonrecoverable Advance such fees shall be reimbursable to it as an Additional Trust Fund Expense from the Certificate Account pursuant to Section 3.05(a). (h) Within 60 days after the Closing Date, the Master Servicer shall notify (i) each provider of a letter of credit for each Mortgage Loan identified as having a letter of credit on the Mortgage Loan Schedule, that the Master Servicer or the Special Servicer on behalf of the Trustee for the benefit of the Certificateholders shall be the beneficiary under each such letter of credit and (ii) each lessor under a Ground Lease for each Mortgage Loan identified as subject to a leasehold interest on the Mortgage Loan Schedule, that the Master Servicer or the Special Servicer shall service such Mortgage Loan for the benefit of the Certificateholders. (i) With respect to any Mortgage Loan in connection with which the Mortgagor was required to escrow funds or to post a letter of credit related to obtaining certain performance objectives described in the applicable Mortgage Loan documents, the Master Servicer shall, to the extent consistent with the Servicing Standard, hold such escrows, letters of credit and proceeds thereof as additional collateral and not apply such items to reduce the principal balance of such Mortgage Loan unless otherwise required to do so pursuant to the applicable Mortgage Loan documents. (j) Notwithstanding anything herein to the contrary, in no event shall the Master Servicer make a Servicing Advance with respect to (i) any Companion Loan to the extent the related AB Mortgage Loan has been paid in full or is no longer included in the Trust Fund or (ii) any CML to the extent that the Corresponding CML Senior Balance has been reduced to zero.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Thru Certs Series 2001-3)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (TIAA Seasoned Commercial Mortgage Trust 2007-C4)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and other assets of the Trust that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, and in the best interests and for the benefit of the ~~Certificateholders~~Certificateholders (as determined by the Master Servicer or the Special Servicer, as the case may be, in its good faith and reasonable judgment), in accordance with any and all applicable laws and the terms of this Agreement, the ~~Insurance Policies and the~~ respective Mortgage Loans and the related environmental insurance policies and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information ~~and~~ from the Special Servicer and, based thereon, prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans), and further to render such ~~incidental~~ other services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; and provided, further, that the Special Servicer shall render such services with respect to Mortgage Loans (in addition to the Specially Serviced Mortgage Loans) as are specifically provided for herein. (b) Subject to Section 3.01(a), the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee and to each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. The Master Servicer shall have no responsibility for the performance by the Special Servicer of its duties hereunder, and the Special Servicer shall have no responsibility for the performance by the Master Servicer of its duties hereunder, in each case unless the Master Servicer and the Special Servicer are the same Person. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, each of the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with ~~it,~~ it are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Com Mor Pas THR Cer Se 1999-C1)

Administration of the Mortgage Loans. ~~(a) Each of~~ The Servicer, the ~~Master~~ Co-Servicer and the Special ~~Servicer~~ Servicer, each as an independent contractor servicer, shall service and administer (i) in the case of the Servicer, the Mortgage Loans ~~that it is obligated to service~~ (other than the Mortgage Loans serviced by the Co-Servicer), (ii) in the case of the Co-Servicer, the Equity Loans and ~~administer pursuant to this Agreement~~ (iii) in the case of the Special Servicer, the Specially Serviced Mortgage Loans, each on behalf of the ~~Trustee,~~ Trust Fund and in the ~~best interests and~~ Trustee (as trustee for ~~the benefit of the~~ Certificateholders, ) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and the~~ respective Mortgage ~~Loans and~~Loan, and to the extent consistent with the foregoing, ~~in accordance with~~ the Servicing Standard. ~~Without limiting~~ The Servicer's, Co-Servicer's or Special Servicer's liability for actions and omissions in its capacity as Servicer, Co-Servicer or Special Servicer, as the ~~foregoing~~case may be, hereunder is limited as provided herein (including, without limitation, pursuant to Section 6.03 hereof). To the extent consistent with the foregoing and subject to ~~Section 3.21~~any express limitations set forth in this Agreement, ~~(i)~~ the ~~Master~~ Servicer, Co-Servicer ~~shall service~~ and ~~administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the~~ Special Servicer shall ~~service~~ seek to maximize the timely and ~~administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred,~~ complete recovery of principal and ~~(y) each REO Property~~interest on the Notes; provided, however, that nothing herein contained shall be construed as an express or implied guarantee by the ~~Master~~ Servicer, Co-Servicer ~~shall continue to collect information and prepare all reports~~ or Special Servicer of the collectability of the Mortgage Loans. Subject only to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. (b) Subject to Section 3.01(a)Servicing Standard, the ~~Master~~ Servicer, Co-Servicer and ~~the~~ Special Servicer ~~each~~ shall have full power and authority, acting ~~alone~~alone or through sub-servicers (subject to paragraph (c) of this Section 3.01 and to Section 3.02), to do or cause to be done any and all things in connection with such servicing and administration which it may deem ~~necessary or desirable. Without limiting~~ consistent with the ~~generality of the foregoing, each of the Master Servicer and the Special Servicer~~Servicing Standard and, in its ~~own name~~reasonable judgment, in the best interests of the Certificateholders, including, without limitation, with respect to each ~~of the~~ Mortgage ~~Loans it is obligated~~ Loan, to ~~service hereunder~~prepare, ~~is hereby authorized and empowered by the Trustee to~~ execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien ~~created by any Mortgage or other security document in the related Mortgage File~~ on ~~the related~~ each Mortgaged Property and related collateral; (ii) ~~in accordance with the Servicing Standard and~~ subject to Sections ~~3.08~~ 3.09, 3.10 and ~~3.20~~3.30, any ~~and all~~ modifications, waivers, consents or amendments ~~or consents~~ to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Mortgage Loans and the Mortgaged Properties. The Servicer, Co-Servicer and Special Servicer shall provide to the Borrowers any reports required to be provided to them pursuant to the Mortgage Loans. Subject to Section ~~3.10~~3.11, the Trustee shall, at upon the receipt of a written request of a Servicing ~~Officer of~~ Officer, execute and deliver to the ~~Master Servicer or the Special~~ Servicer, ~~furnish, or cause to be so furnished, to the Master~~ Co-Servicer and ~~the~~ Special ~~Servicer, as the case may be,~~ Servicer any ~~limited~~ powers of attorney and other documents prepared by the Servicer, Co-Servicer and Special Servicer and necessary or appropriate (as certified in such written request) to enable ~~them~~ the Servicer, Co-Servicer and Special Servicer to carry out their servicing and administrative duties hereunder~~; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer~~. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Capco America Securitization Corp)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Serviced Mortgage Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of any Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Noteholder(s)) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of a Loan Combination, the terms of the related Loan Combination Intercreditor Agreement (which, in the event of any conflict with this Agreement, shall control), to the extent consistent with the foregoing, in accordance with the Servicing Standard. Notwithstanding the foregoing, it is acknowledged and agreed for the avoidance of doubt that, consistent with the definitions of the terms "Loan Combination" and "Serviced Mortgage Loan", there are no Loan Combinations that are to be serviced under this Agreement as of the Closing Date, and that any provisions of this Agreement that relate to the Master Servicer or the Special Servicer taking any actions with respect to a Loan Combination are to be construed accordingly. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Serviced Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, and ~~prepare~~ prepare, or cause to be prepared, all reports to required hereunder, except for the ~~Trustee required hereunder~~ reports specified herein, as prepared by the Special Servicer with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ the Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided further, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a), Section 6.11 and Section 6.12, the Master Servicer and the Special Servicer each shall have full power and authority, acting ~~alone~~alone (or, pursuant to Section 3.22, through one or more Sub-Servicers), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Loan Combination Intercreditor Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee ~~or any of them:~~ and each such Non-Trust Noteholder, (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20, Section 6.11 and ~~3.20~~Section 6.12, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name (or, in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's name) without indicating the Master Servicer's or Special Servicer's as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer,~~ venture or partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event shall the Master Servicer, the Trustee or the Fiscal Agent make a Servicing Advance with respect to any Non-Trust Loan to the extent the related Trust Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Neither the Master Servicer nor the Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement. (f) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Loan Combination Intercreditor Agreement. The parties hereto further recognize the respective rights and obligations of the related Non-Trust Noteholder(s) under the related Loan Combination Intercreditor Agreement, including with respect to (i) the allocation of collections on or in respect of the applicable Loan Combination, and the making of payments, to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, (ii) the allocation of expenses and/or losses relating to the subject Loan Combination to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, and (iii) the right of a B-Noteholder or its designee (in the case of an A/B Loan Combination) or the [Blackacre] Pari Passu Noteholder or a [Blackacre] Subordinate Noteholder (in the case of the [Blackacre] Loan Combination) to purchase the related Trust Mortgage Loan in accordance with the related Loan Combination Intercreditor Agreement. (g) With respect to any Loan Combination that includes a Serviced Trust Mortgage Loan, in the event that either the related Trust Mortgage Loan or the related Loan Combination REO Property (or any ~~two or more Mortgage Loans are cross-collateralized with each other~~interest therein) is no longer an asset of the Trust Fund and, except as contemplated in the ~~Master Servicer or Special Servicer, as applicable~~second paragraph of this Section 3.01(g), in accordance with the ~~terms~~ related Loan Combination Intercreditor Agreement, the servicing and administration of such Loan Combination and any related Loan Combination REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in the related Loan Combination Intercreditor Agreement) the Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Loan Combination Mortgaged Property has become a Loan Combination REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Loan Combination Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Loan Combination that includes a Serviced Trust Mortgage Loan, if at any time neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related Loan Combination REO Property, as applicable, has not been entered into as contemplated by the related Loan Combination Intercreditor Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Loan Combination Intercreditor Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such ~~Mortgage Loans~~ Loan Combination and/or any related Loan Combination REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as ~~a single Mortgage~~ if such Loan ~~as and when it deems necessary and appropriate, consistent with~~ Combination or any related Loan Combination REO Property were the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"sole assets subject hereto.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Pass THR Cer Ser 2001-C3)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and Companion Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided that in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. As further described below in Section 3.01(h), with respect to the Wxxx-Xxxxx Loans, the Master Servicer and the Special Servicer, as applicable, shall perform the servicing functions required of the Indenture Trustee under the related Wxxx-Xxxxx Indentures. Without limiting the foregoing, and subject to Section ~~3.21~~3.21(a), (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and related REO Property and shall render such services with respect to all such Mortgage ~~Loan)~~ Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for ~~herein~~herein or as the Special Servicer reasonably requests to enable it to perform its responsibilities under this Agreement; provided, further, however, the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable, including filing or initiating legal actions or proceedings as the named plaintiff in their representative capacities on behalf of the Trust. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in on behalf of the Trustee and by referencing its ~~own name~~representative capacity, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Intercreditor Agreement, the Companion Holders to execute and deliver, on behalf of the ~~Certificateholders~~ Certificateholders, the Companion Holders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(h). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, ~~that~~ the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer; provided, further, the Master Servicer and the Special Servicer shall not, without the Trustee’s written consent, (A) initiate any action in the Trustee’s name without indicating the Master Servicer’s or Special Servicer’s representative capacity or (B) cause the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event shall the Master Servicer make a Servicing Advance with respect to any Companion Loan to the extent the related Co-Lender Loan has been paid in full or is no longer included in the Trust Fund. (e) Servicing and administration of each Companion Loan shall continue hereunder for so long as the corresponding Co-Lender Loan or any related REO Property is part of the Trust Fund or for such longer period as any amounts payable by the related Companion Holder to or for the benefit of the Trust Fund or any party hereto in accordance with the related Intercreditor Agreement remain due and owing; provided, however, if any Companion Loan is securitized, the Master Servicer’s servicing obligations and duties with respect to the related Companion Loan shall be limited to those obligations and duties described in the related Intercreditor Agreement and this Agreement. (f) Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the servicing and administration of a Serviced Whole Loan shall continue hereunder (without any ~~two or more~~ further obligation to make P&I Advances) even if the related Mortgage ~~Loans are cross-collateralized~~ Loan is no longer part of the Trust Fund, until such time as a separate servicing agreement is entered into in accordance with ~~each other~~the related Intercreditor Agreement (it being acknowledged that neither the Master Servicer, the Trustee nor the Special Servicer shall be obligated under a separate agreement to which it is not a party). At such time as a separate servicing agreement is entered into, all amounts due to the Master Servicer or Special Servicer, as applicable, ~~in accordance~~ including advances and interest thereon, for the period that the Serviced Whole Loan was not part of the Trust Fund, but was serviced by the Master Servicer or the Special Servicer, as applicable, shall be paid to the Master Servicer or the Special Servicer by the holder of such Serviced Whole Loan or as otherwise agreed to by such holder and the Master Servicer or the Special Servicer, as applicable. (g) Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the Master Servicer’s obligations and responsibilities hereunder and the Master Servicer’s authority with respect to the Serviced Whole Loans are limited by and subject to the terms of ~~this~~ the related Intercreditor Agreement. The Master Servicer (or, if a Serviced Whole Loan becomes a Specially Serviced Loan, the Special Servicer) shall ~~service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate,~~ use reasonable efforts consistent with the Servicing ~~Standard~~Standard to obtain the benefits of the rights of the Trust Fund (as holder of the related Serviced Mortgage Loan) under the related Intercreditor Agreement. (h) Master Servicer hereby assumes all duties and obligations of the Administrator as provided for in the Administration Agreement with respect to the Wxxx-Xxxxx Loans. If The Indenture Trustee hereby consents to the assumption of such duties by the Master Servicer. Notwithstanding the foregoing, if any ~~Cross~~of the Wxxx-~~Collateralized Mortgage Loan~~ Xxxxx Loans becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless the Special Servicer will assume all duties and ~~until all Servicing Transfer Events in respect~~ obligations of ~~each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed~~ the Administrator as ~~contemplated~~ provided in the ~~definition of "Specially Serviced Mortgage~~ Administration Agreement with respect to the related Wxxx-Xxxxx Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C34)

Administration of the Mortgage Loans. (a) Each of the Master ~~Servicer~~ Servicers and the Special Servicer shall service and administer the Serviced Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of any Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Noteholder(s)) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of a Loan Combination, the terms of the related Loan Combination Intercreditor Agreement (which, in the event of any conflict with this Agreement, shall control), to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master ~~Servicer~~ Servicers shall service and administer all Serviced Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as are specifically provided for herein; provided that the Master Servicers shall continue to ~~which a~~ receive payments, and prepare, or cause to be prepared, all reports required hereunder, except for the reports specified herein, as prepared by the Special Servicer with respect to the Specially Serviced Mortgage Loans, as if no Servicing Transfer Event ~~has occurred,~~ had occurred and ~~(y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder~~ with respect to ~~any Specially Serviced Mortgage Loans and~~ the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ the Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, that neither Master Servicer shall be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to such Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicers and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a), Section 6.11 and, if applicable, Section 6.12, the Master ~~Servicer~~ Servicers and the Special Servicer each shall have full power and authority, acting ~~alone~~alone (or, pursuant to Section 3.22, through one or more Sub-Servicers), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master ~~Servicer~~ Servicers and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Loan Combination Intercreditor Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee ~~or any of them:~~ and each such Non-Trust Noteholder, (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08 and~~ Section 3.20, Section 6.11 and, if applicable, Section 6.12, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the applicable Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by such Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by ~~the~~ either Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicers nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name (or, in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's name) without indicating the representative capacity of the applicable Master Servicer or the Special Servicer, as the case may be; or (ii) take any action with the intent to cause, and that actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master ~~Servicer~~ Servicers and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer,~~ venture or partner or agent. No Person acting in any one or more of such capacities shall be responsible for the actions of or failure to act by another Person acting in any one or more of such capacities. (d) In Notwithstanding anything herein to the contrary, in no event shall either Master Servicer, the Trustee or any Fiscal Agent make a Servicing Advance with respect to any Non-Trust Loan to the extent the related Trust Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Neither the Master Servicers nor the Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement. (f) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Loan Combination Intercreditor Agreement. The parties hereto further recognize the respective rights and obligations of the related Non-Trust Noteholder(s) under the related Loan Combination Intercreditor Agreement, including with respect to (i) the allocation of collections on or in respect of the applicable Loan Combination, and the making of payments, to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, (ii) the allocation of expenses and/or losses relating to the subject Loan Combination to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, and (iii) the right of a B-Note Loan Holder or its designee to purchase the related Trust Mortgage Loan in accordance with the related Loan Combination Intercreditor Agreement. (g) With respect to any Loan Combination that includes a Serviced Trust Mortgage Loan, in the event that either the related Trust Mortgage Loan or the related Loan Combination REO Property (or any ~~two or more Mortgage Loans are cross-collateralized with each other~~interest therein) is no longer an asset of the Trust Fund and, except as contemplated in the ~~Master Servicer or Special Servicer, as applicable~~second paragraph of this Section 3.01(g), in accordance with the ~~terms~~ related Loan Combination Intercreditor Agreement, the servicing and administration of such Loan Combination and any related Loan Combination REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in or pursuant to the related Loan Combination Intercreditor Agreement) the applicable Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Loan Combination Mortgaged Property has become a Loan Combination REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the applicable Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Loan Combination Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Loan Combination that includes a Serviced Trust Mortgage Loan, if at any time neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related Loan Combination REO Property, as applicable, has not been entered into as contemplated by the related Loan Combination Intercreditor Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Loan Combination Intercreditor Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the applicable Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such ~~Mortgage Loans~~ Loan Combination and/or any related Loan Combination REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as if such Loan Combination or any related Loan Combination REO Property were the sole assets subject hereto but shall not be required to make any Advances with respect thereto. (h) Nothing contained in this Agreement shall limit the ability of either Master Servicer to lend money to or accept deposits from or otherwise generally engage in any kind of business or dealings with any Mortgagor as though such Master Servicer was not a ~~single~~ party to this Agreement or to the transactions contemplated hereby; provided, however, that no such loan made by such Master Servicer may be secured, in whole or in part by any Mortgaged Property securing a Mortgage Loan as or by ownership interests in a Mortgagor, and ~~when it deems necessary and appropriate~~provided, ~~consistent~~ further, that the foregoing provision shall not act to modify, qualify or limit a Master Servicer's obligation to act in accordance with the Servicing Standard~~. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan~~. (i) In clarification of, ~~then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly~~and neither in addition to nor in deletion of the duties and obligations of the Master Servicers or the Special Servicer pursuant to this Agreement, no ~~Cross~~provision herein contained shall be construed as an express or implied guarantee by either Master Servicer or the Special Servicer of the collectibility or recoverability of payments on the Mortgage Loans or shall be construed to impair or adversely affect any rights or benefits provided by this Agreement to such Master Servicer or the Special Servicer (including with respect to Master Servicing Fees or the right to be reimbursed for Advances). Any provision in this Agreement for any Advance by a Master Servicer, the Special Servicer or the Trustee is intended solely to provide liquidity for the benefit of the Certificateholders and, if applicable, the Non-~~Collateralized~~ Trust Noteholders, and not as credit support or otherwise to impose on any such Person the risk of loss with respect to one or more of the Mortgage Loans. No provision hereof shall be construed to impose liability on either Master Servicer or the Special Servicer for the reason that any recovery to the Certificateholders (or, in the case of any Loan ~~shall subsequently become a Corrected Mortgage Loan~~Combination, ~~unless~~ to the Certificateholders and ~~until all Servicing Transfer Events~~ the related Non-Trust Noteholder(s)) in respect of ~~each other~~ a Mortgage Loan ~~that~~ at any time after a determination of present value recovery made in its reasonable and good faith judgment in accordance with the Servicing Standard by such Master Servicer or the Special Servicer hereunder at any time is ~~cross-collateralized with it, are remediated or otherwise addressed as contemplated~~ less than the amount reflected in ~~the definition of "Specially Serviced Mortgage Loan"~~such determination.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-4)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Commercial Mort Pass THR Certs Ser 2004-C10)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CWCapital Commercial Funding Corp.)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mort Pass Through Cert Ser 2002-2)

Administration of the Mortgage Loans. (a) Each of the ~~Master~~ Servicer and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this ~~Agreement on behalf of the Trustee~~Agreement, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (as a collective whole), in accordance with any and all applicable laws and the terms of this ~~Agreement, the Insurance Policies~~ Agreement and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. The Servicer or Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the ~~Master~~ Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the ~~Master~~ Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Mortgage Loans)) and, ~~and further~~ further, to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. The Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged Property. (b) Subject to Section 3.01(a)) and Section 3.24, the ~~Master~~ Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone or through Sub-Servicers, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the ~~Master~~ Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and other related collateral; and (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. In addition, without limiting the generality of the foregoing, each of the Servicer and Special Servicer is authorized and empowered by the Trustee to execute and deliver, in accordance with the Servicing Standard and subject to Sections 3.08, 3.20 and 3.24, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the ~~Master~~ Servicer or the Special Servicer, furnish, or cause to be so furnished, to the ~~Master~~ Servicer ~~and~~ or the Special Servicer, as ~~the case may be~~appropriate, any limited powers of attorney and other documents (each of which shall be prepared by the Servicer or Special Servicer, as applicable) necessary or appropriate to enable ~~them~~ it to carry out ~~their~~ its servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the ~~Master~~ Servicer or the Special Servicer. (c) The relationship of each of the ~~Master~~ Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (DLJ Commercial Mort Corp Comm Mort Pass THR Cer Ser 1998-Cg1)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Banc of America Comm Mort Inc Pass Throu Certs Series 2004 2)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Serviced Trust Mortgage Loans (and, in the case of the Special Servicer, any related REO Properties) that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of any Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Noteholder(s)) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of a Loan Combination, the terms of the related Loan Combination Intercreditor Agreement (which, in the event of any conflict with this Agreement, shall control), to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Serviced Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, and ~~prepare~~ prepare, or cause to be prepared, all reports to required hereunder, except for the ~~Trustee required hereunder~~ reports specified herein, as prepared by the Special Servicer with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ the Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a), Section 6.11 and Section 6.12, the Master Servicer and the Special Servicer each shall have full power and authority, acting ~~alone~~alone (or, pursuant to Section 3.22, through one or more Sub-Servicers), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Loan Combination Intercreditor Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee ~~or any of them:~~ and each such Non-Trust Noteholder, (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20, Section 6.11 and ~~3.20~~Section 6.12, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name (or, in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's name) without indicating the Master Servicer's or Special Servicer's as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer,~~ venture or partner or agent. The Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event ~~that any two or more Mortgage Loans are cross-collateralized with each other,~~ shall the Master Servicer or the Trustee make a Servicing Advance with respect to any Non-Trust Loan to the extent the related Trust Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Neither the Master Servicer nor the Special ~~Servicer~~Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement. (f) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Loan Combination Intercreditor Agreement. The parties hereto further recognize the respective rights and obligations of the related Non-Trust Noteholder(s) under the related Loan Combination Intercreditor Agreement, including with respect to (i) the allocation of collections on or in respect of the applicable Loan Combination, and the making of payments, to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, (ii) the allocation of expenses and/or losses relating to the subject Loan Combination to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, and (iii) the right of a B-Noteholder or its designee (in the case of an A/B Loan Combination) or the Glendale Galleria Pari Passu Noteholder or a Glendale Galleria Subordinate Noteholder (in the case of the Glendale Galleria Loan Combination) to purchase the related Trust Mortgage Loan in accordance with the related Loan Combination Intercreditor Agreement. (g) With respect to any Loan Combination that includes a Serviced Trust Mortgage Loan, in the event that either the related Trust Mortgage Loan or the related Loan Combination REO Property (or any interest therein) is no longer an asset of the Trust Fund and, except as ~~applicable~~contemplated in the second paragraph of this Section 3.01(g), in accordance with the ~~terms~~ related Loan Combination Intercreditor Agreement, the servicing and administration of such Loan Combination and any related Loan Combination REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in the related Loan Combination Intercreditor Agreement) the Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Loan Combination Mortgaged Property has become a Loan Combination REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Loan Combination Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder; and provided that neither the Master Servicer nor the Special Servicer nor the Trustee shall be required to make any Advances thereunder. Further, with respect to any Loan Combination that includes a Serviced Trust Mortgage Loan, if at any time neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related Loan Combination REO Property, as applicable, has not been entered into as contemplated by the related Loan Combination Intercreditor Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Loan Combination Intercreditor Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such ~~Mortgage Loans~~ Loan Combination and/or any related Loan Combination REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as ~~a single Mortgage~~ if such Loan ~~as and when it deems necessary and appropriate, consistent with~~ Combination or any related Loan Combination REO Property were the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"sole assets subject hereto.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Lc1)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Credit Suisse Fr Bs Mor Sec Cp Com Mor Ps Th Ce Ser 2001-Ck1)

Administration of the Mortgage Loans. (a) Each of the Master ~~Servicer~~ Servicers and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of any Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Noteholder(s)) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of a Loan Combination, the terms of the related Loan Combination Intercreditor Agreement (which, in the event of any conflict with this Agreement, shall control), to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master ~~Servicer~~ Servicers shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as are specifically provided for herein; provided that the Master Servicers shall continue to ~~which a~~ receive payments, and prepare, or cause to be prepared, all reports required hereunder, except for the reports specified herein, as prepared by the Special Servicer with respect to the Specially Serviced Mortgage Loans, as if no Servicing Transfer Event ~~has occurred,~~ had occurred and ~~(y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder~~ with respect to ~~any Specially Serviced Mortgage Loans and~~ the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ the Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, that neither Master Servicer shall be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to such Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicers and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a), Section 6.11 and Section 6.12, the Master ~~Servicer~~ Servicers and the Special Servicer each shall have full power and authority, acting ~~alone~~alone (or, pursuant to Section 3.22, through one or more Sub-Servicers), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master ~~Servicer~~ Servicers and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Loan Combination Intercreditor Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee ~~or any of them:~~ and each such Non-Trust Noteholder, (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20, Section 6.11 and ~~3.20~~Section 6.12, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the applicable Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by such Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by ~~the~~ either Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicers nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name (or, in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's name) without indicating the applicable Master Servicer's or the Special Servicer's as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master ~~Servicer~~ Servicers, the Special Servicer, the Certificate Administrator and ~~Special Servicer~~ the Custodian to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer,~~ venture or partner or agent. No Person acting in any one or more of such capacities shall be responsible for the actions of or failure to act by another Person acting in any one or more of such capacities. (d) In Notwithstanding anything herein to the contrary, in no event shall either Master Servicer, the Trustee or any Fiscal Agent make a Servicing Advance with respect to any Non-Trust Loan to the extent the related Trust Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Neither the Master Servicers nor the Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement. (f) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Loan Combination Intercreditor Agreement. The parties hereto further recognize the respective rights and obligations of the related Non-Trust Noteholder(s) under the related Loan Combination Intercreditor Agreement, including with respect to (i) the allocation of collections on or in respect of the applicable Loan Combination, and the making of payments, to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, (ii) the allocation of expenses and/or losses relating to the subject Loan Combination to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, and (iii) the right of a B-Note Loan Holder or its designee to purchase the related Trust Mortgage Loan in accordance with the related Loan Combination Intercreditor Agreement. (g) With respect to any Loan Combination that includes a Trust Mortgage Loan, in the event that either the related Trust Mortgage Loan or the related Loan Combination REO Property (or any ~~two or more Mortgage Loans are cross-collateralized with each other~~interest therein) is no longer an asset of the Trust Fund and, except as contemplated in the ~~Master Servicer or Special Servicer, as applicable~~second paragraph of this Section 3.01(g), in accordance with the ~~terms~~ related Loan Combination Intercreditor Agreement, the servicing and administration of such Loan Combination and any related Loan Combination REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in or pursuant to the related Loan Combination Intercreditor Agreement) the applicable Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Loan Combination Mortgaged Property has become a Loan Combination REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the applicable Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Loan Combination Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Loan Combination that includes a Trust Mortgage Loan, if at any time neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related Loan Combination REO Property, as applicable, has not been entered into as contemplated by the related Loan Combination Intercreditor Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Loan Combination Intercreditor Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the applicable Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such ~~Mortgage Loans~~ Loan Combination and/or any related Loan Combination REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as if such Loan Combination or any related Loan Combination REO Property were the sole assets subject hereto. (h) Nothing contained in this Agreement shall limit the ability of either Master Servicer to lend money to or accept deposits from or otherwise generally engage in any kind of business or dealings with any Mortgagor as though such Master Servicer was not a ~~single~~ party to this Agreement or to the transactions contemplated hereby; provided, however, that no such loan made by such Master Servicer may be secured, in whole or in part by any Mortgaged Property securing a Mortgage Loan as or by ownership interests in a Mortgagor, and ~~when it deems necessary and appropriate~~provided, ~~consistent~~ further, that the foregoing provision shall not act to modify, qualify or limit a Master Servicer's obligation to act in accordance with the Servicing Standard~~. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan~~. (i) In clarification of, ~~then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly~~and neither in addition to nor in deletion of the duties and obligations of the Master Servicers or the Special Servicer pursuant to this Agreement, no ~~Cross~~provision herein contained shall be construed as an express or implied guarantee by either Master Servicer or the Special Servicer of the collectibility or recoverability of payments on the Mortgage Loans or shall be construed to impair or adversely affect any rights or benefits provided by this Agreement to such Master Servicer or the Special Servicer (including with respect to Master Servicing Fees or the right to be reimbursed for Advances). Any provision in this Agreement for any Advance by a Master Servicer, the Special Servicer or the Trustee is intended solely to provide liquidity for the benefit of the Certificateholders and, if applicable, the Non-~~Collateralized~~ Trust Noteholders, and not as credit support or otherwise to impose on any such Person the risk of loss with respect to one or more of the Mortgage Loans. No provision hereof shall be construed to impose liability on either Master Servicer or the Special Servicer for the reason that any recovery to the Certificateholders (or, in the case of any Loan ~~shall subsequently become a Corrected Mortgage Loan~~Combination, ~~unless~~ to the Certificateholders and ~~until all Servicing Transfer Events~~ the related Non-Trust Noteholder(s)) in respect of ~~each other~~ a Mortgage Loan ~~that~~ at any time after a determination of present value recovery made in its reasonable and good faith judgment in accordance with the Servicing Standard by such Master Servicer or the Special Servicer hereunder at any time is ~~cross-collateralized with it, are remediated or otherwise addressed as contemplated~~ less than the amount reflected in ~~the definition of "Specially Serviced Mortgage Loan"~~such determination.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2006-C1)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and the Companion Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided, in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; provided~~, however~~, that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, that the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Intercreditor Agreement, the Companion Holders to execute and deliver, on behalf of the ~~Certificateholders~~ Certificateholders, the Companion Holders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(h). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer; provided, further, that, the Master Servicer and the Special Servicer shall not, without the Trustee’s written consent, (A) initiate any action in the Trustee’s name without indicating the Master Servicer’s or Special Servicer’s representative capacity or (B) cause the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event ~~that any two or more Mortgage Loans are cross-collateralized with each other,~~ shall the Master Servicer make a Servicing Advance with respect to any Companion Loan to the extent the related Co-Lender Loan has been paid in full or ~~Special Servicer,~~ is no longer included in the Trust Fund. (e) Servicing and administration of each Companion Loan shall continue hereunder for so long as ~~applicable,~~ the corresponding Co-Lender Loan or any related REO Property is part of the Trust Fund or for such longer period as any amounts payable by the related Companion Holder to or for the benefit of the Trust Fund or any party hereto in accordance with the ~~terms of~~ related Intercreditor Agreement remain due and owing; provided, however, if any Subordinate Companion Loan is securitized, the Master Servicer’s servicing obligations and duties with respect to the related Subordinate Companion Loan shall be limited to those obligations and duties described in the related Intercreditor Agreement and this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C17)

Administration of the Mortgage Loans. (a) All of the Serviced Mortgage Loans and Administered REO Properties are to be serviced and administered by the Master Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and the Special Servicer shall service and administer the Serviced Mortgage Loans and Administered REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of a Serviced Loan Combination, for the benefit of the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this Agreement, ; (iii) the ~~Insurance Policies and~~ express terms of the respective Serviced Mortgage Loans ~~and~~and any and all related intercreditor, co-lender or similar agreements (including with respect to performing the duties of the holders of the respective Serviced Mortgage Loans thereunder (to the extent not inconsistent with this Agreement and to the extent consistent with the Servicing Standard)); and (iv) to the extent consistent with the foregoing, the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Serviced Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the ~~foregoing,~~ foregoing and subject to Section 3.21, (i) the Master Servicer shall service and administer all of the Performing Serviced Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans~~ Loan and Administered REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially~~ Performing Serviced Mortgage Loans ~~and REO Properties~~ as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to ~~Section~~ Sections 3.01(a), 3.20, 6.11 and 6.12, the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone (or, to the extent contemplated by Section 3.22 of this Agreement, through subservicers), to do or cause to be done any and all things in connection with ~~such~~ the servicing and administration ~~which~~ contemplated by Section 3.01(a) that it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is ~~hereby~~ authorized and empowered by the Trustee and, to the extent provided in the related Co-Lender Agreement, each related Serviced Non-Trust Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan Noteholder or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections ~~3.08~~ 3.01(a), 3.20, 6.11 and ~~3.20~~6.12, any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or ~~discharge~~discharge or of assignment, and all other comparable instruments; and (iv) any and all instruments that such party may be required to execute on behalf of the Trustee in connection with the defeasance of a Serviced Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Co-Lender Agreement; and, with respect to each Loan Combination, the parties hereto further recognize the respective rights and obligations of the Trust, as holder of the related Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan Noteholder(s) under the related Co-Lender Agreement. (d) With respect to any Serviced Loan Combination, in the event that neither the related Trust Mortgage Loan nor the related REO Property (or any interest therein) is an asset of the Trust Fund and, except as contemplated in the second paragraph of this Section 3.01(d), in accordance with the related Co-Lender Agreement, the servicing and administration of such Serviced Loan Combination and any related REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Serviced Loan Combination or (ii) if expressly provided for in the related Co-Lender Agreement) the Master Servicer and, if such Serviced Loan Combination is then being specially serviced hereunder or the related Mortgaged Property has become an REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Serviced Loan Combination and the related Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Serviced Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Serviced Loan Combination or any related REO Property, as applicable, has not been entered into as contemplated by the related Co-Lender Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Co-Lender Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Serviced Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such Serviced Loan Combination and/or any related REO Property, for the benefit of the respective holders of such Serviced Loan Combination, under this Agreement as if such Serviced Loan Combination or any related REO Property were the sole assets subject hereto, with certain references in this Agreement applicable to the Trust, the Trustee, the Certificates, the Certificateholders (or any subgroup thereof) or any representative of any such Certificateholders, all being construed to refer to such similar terms as are applicable to the then current holder of the Mortgage Note for the related Serviced Combination Trust Mortgage Loan. (e) The Master Servicer shall use efforts consistent with the Servicing Standard to have prepared, executed (with the cooperation of the Depositor (in the case of a Lehman Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) in obtaining requisite signatures, if applicable) and delivered by the applicable party (and included in the Servicing File), not later than the later of (i) 30 days following the Master Servicer's receipt of the subject franchisor comfort letter, guaranty of payment or letter of credit and (ii) the expiration of the period that may be required for such transfer or assignment pursuant to the terms of the applicable franchisor comfort letter, guaranty of payment or letter of credit, if any, (A) with respect to any Serviced Mortgage Loan secured by a hospitality property (as identified on Schedule VI hereto) (and with respect to which a franchise agreement constitutes part of the related Mortgage File on the Closing Date), any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related franchisor comfort letter; and (B) with respect to any Serviced Mortgage Loan that has a related guaranty or letter of credit that constitutes part of the related Mortgage File on the Closing Date, any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related guaranty of payment or letter of credit. In the event, with respect to a Serviced Trust Mortgage Loan with a related letter of credit, it is determined by the Master Servicer that a draw under such letter of credit has become necessary under the terms thereof prior to the assignment under clause (B) of the preceding sentence having been effected, the Master Servicer shall direct (in writing) the Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the xxxx of a UBS Trust Mortgage Loan) to make such draw or to cause such draw to be made on behalf of the Trustee, and, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, use its best efforts to cause such draw to be made; provided that neither the Depositor nor the UBS Mortgage Loan Seller shall have any liability in connection with the determination to make, or the making of, such draw (other than to remit the proceeds of such draw to the Master Servicer). (f) The relationship of each of the Master Servicer and the Special Servicer to the ~~Trustee~~ Trustee, to the Serviced Non-Trust Mortgage Loan Noteholders and to each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (dg) ~~In the event~~ The parties hereto acknowledge that ~~any two or more~~ each Outside Serviced Trust Mortgage ~~Loans are cross-collateralized with each other~~Loan (and, if such Outside Serviced Trust Mortgage Loan is part of a Loan Combination, the ~~Master Servicer or Special Servicer, as applicable,~~ related Outside Serviced Non-Trust Mortgage Loan(s)) will primarily be serviced and administered in accordance with the ~~terms of this~~ related Outside Servicing Agreement, ~~shall service~~ and ~~administer such Mortgage Loans as a single Mortgage Loan as~~ the servicing and ~~when it deems necessary and appropriate, consistent~~ administrative duties of the parties hereto with ~~the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially~~ respect to each Outside Serviced Trust Mortgage Loan, ~~then each other~~ any successor REO Trust Mortgage Loan ~~that is cross-collateralized~~ with it respect thereto and any related Outside Administered REO Property shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"be limited to those expressly set forth herein.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C4)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MLMT 2008-C1)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Commercial Mort Pass Thru Cert Ser 2002-C2)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of any Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Noteholder(s)) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of a Loan Combination, the terms of the related Loan Combination Intercreditor Agreement (which, in the event of any conflict with this Agreement, shall control), to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, and ~~prepare~~ prepare, or cause to be prepared, all reports to required hereunder, except for the ~~Trustee required hereunder~~ reports specified herein, as prepared by the Special Servicer with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ the Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a), Section 6.11 and Section 6.12, the Master Servicer and the Special Servicer each shall have full power and authority, acting ~~alone~~alone (or, pursuant to Section 3.22, through one or more Sub-Servicers), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Loan Combination Intercreditor Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee ~~or any of them:~~ and each such Non-Trust Noteholder, (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20, Section 6.11 and ~~3.20~~Section 6.12, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name (or, in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's name) without indicating the Master Servicer's or Special Servicer's as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer,~~ venture or partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event shall the Master Servicer, the Trustee or any Fiscal Agent make a Servicing Advance with respect to any Non-Trust Loan to the extent the related Trust Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Neither the Master Servicer nor the Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement. (f) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Loan Combination Intercreditor Agreement. The parties hereto further recognize the respective rights and obligations of the related Non-Trust Noteholder(s) under the related Loan Combination Intercreditor Agreement, including with respect to (i) the allocation of collections on or in respect of the applicable Loan Combination, and the making of payments, to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, (ii) the allocation of expenses and/or losses relating to the subject Loan Combination to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, and (iii) the right of a B-Note Loan Holder or its designee to purchase the related Trust Mortgage Loan in accordance with the related Loan Combination Intercreditor Agreement. (g) With respect to any Loan Combination that includes a Trust Mortgage Loan, in the event that either the related Trust Mortgage Loan or the related Loan Combination REO Property (or any ~~two or more Mortgage Loans are cross-collateralized with each other~~interest therein) is no longer an asset of the Trust Fund and, except as contemplated in the ~~Master Servicer or Special Servicer, as applicable~~second paragraph of this Section 3.01(g), in accordance with the ~~terms~~ related Loan Combination Intercreditor Agreement, the servicing and administration of such Loan Combination and any related Loan Combination REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in or pursuant to the related Loan Combination Intercreditor Agreement) the Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Loan Combination Mortgaged Property has become a Loan Combination REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Loan Combination Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Loan Combination that includes a Trust Mortgage Loan, if at any time neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related Loan Combination REO Property, as applicable, has not been entered into as contemplated by the related Loan Combination Intercreditor Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Loan Combination Intercreditor Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such ~~Mortgage Loans~~ Loan Combination and/or any related Loan Combination REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as ~~a single Mortgage~~ if such Loan ~~as and when it deems necessary and appropriate, consistent with~~ Combination or any related Loan Combination REO Property were the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"sole assets subject hereto.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MLCFC Commercial Mortgage Trust Series 2006-1)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans (other than the 2006-C23 Serviced Mortgage Loan) and Companion Loans (other than the Prime Outlets Pool Pari Passu Companion Loan) that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided that in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans (other than the 2006-C23 Serviced Mortgage Loan and its related Pari Passu Companion Loan) that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan (other than ~~a Corrected~~ the 2006-C23 Serviced Mortgage Loan and its related Companion Loan) and REO Property and shall render such services with respect to all Mortgage Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein~~. (b) Subject to Section 3.01(a)~~; provided, further, however, that the Master Servicer ~~and~~ shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer ~~each shall have full power and authority, acting alone,~~ to ~~do or cause~~ provide sufficient information to ~~be done any and all things in connection~~ the Master Servicer to comply with such ~~servicing and administration which it may deem necessary~~ duties or ~~desirable~~failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, that the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. ~~Without limiting~~ All references herein to the ~~generality of the foregoing, each~~ respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. The parties hereto acknowledge that each of the 2006-C23 Serviced Mortgage Loan and its ~~own name~~related Companion Loan is being serviced and administered under the 2006-C23 Pooling and Servicing Agreement. The Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have no obligation or authority (i) to service and administer the 2006-C23 Serviced Mortgage Loan or its related Companion Loan (except for the limited duties with respect to ~~each of~~ the 2006-C23 Serviced Mortgage ~~Loans it is obligated to service hereunder~~Loan expressly provided herein), is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) to supervise the 2006-C23 Master Servicer, the 2006-C23 Special Servicer or the 2006-C23 Trustee or (iii) to make Servicing Advances or P&I Advances (except to the limited extent described in ~~accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or~~ Section 4.03 with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject P&I Advances to ~~Section 3.10, the Trustee shall, at the written request of a Servicing Officer of~~ be made by the Master Servicer or the Trustee on the 2006-C23 Serviced Mortgage Loan). In addition to any other obligations expressly set forth herein by specific reference to the 2006-C23 Serviced Mortgage Loan, the Master Servicer, the Special Servicer, ~~furnish, or cause to be so furnished,~~ the Trustee and the Paying Agent shall have the following obligations with respect to the ~~Master Servicer and the Special Servicer~~2006-C23 Serviced Mortgage Loan, as the case may be: (i) The Trustee and the Paying Agent shall have the obligations described under Section 2.02 with respect to the Mortgage File for the 2006-C23 Serviced Mortgage Loan; (ii) Each of the Master Servicer, ~~any limited powers of attorney~~ the Special Servicer and ~~other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that~~ the Trustee shall ~~not be held liable for any misuse of any~~ have the obligations applicable to such ~~power of attorney by~~ party under Section 2.03 with respect to the 2006-C23 Serviced Mortgage Loan; (iii) The Master Servicer or shall have the ~~Special Servicer.~~obligations described under Sections 3.04 and 3.05 with respect to all amounts received from the 2006-C23 Master Servicer with respect to the 2006-C23 Serviced Mortgage Loan; (civ) The ~~relationship of each of~~ Trustee shall have the ~~Master Servicer and Special Servicer~~ obligations described under Section 3.10 with respect to the ~~Trustee under this Agreement is intended by~~ Mortgage File for the ~~parties to be that of an independent contractor and not that of a joint venturer, partner or agent.~~2006-C23 Serviced Mortgage Loan; (dv) In Upon receipt of information and reports on the ~~event that any two or more~~ 2006-C23 Serviced Mortgage ~~Loans are cross~~Loan from the 2006-~~collateralized with each other~~C23 Master Servicer, the Master Servicer ~~or Special Servicer, as applicable,~~ shall include such information in ~~accordance~~ the reports and notices required under Section 3.12; (vi) The Master Servicer and the Paying Agent shall each have the obligations applicable to such party under Section 3.15 with respect to information and reports it has received regarding the ~~terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross~~2006-~~Collateralized Mortgage Loan becomes a Specially~~ C23 Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".; and

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C25)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the Certificateholders, as determined in the good faith and reasonable judgement of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the terms of this ~~Agreement, the Insurance Policies~~ Agreement and the respective Mortgage ~~Loans and,~~ Loans; (iii) the terms of any Residual Value Insurance Policies or Lease Enhancement Policies (in the case of the respective CTL Loans); and (iv) to the extent consistent with the foregoing, in accordance with the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans that are not Specially Serviced Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred,~~ and ~~(y) each~~ REO ~~Property; provided, however, that the Master Servicer~~ Property and shall ~~continue to collect information and prepare all reports to the Trustee required hereunder~~ render such services with respect to ~~any~~ the Mortgage Loans that are not Specially Serviced Mortgage Loans ~~and REO Properties (and the related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties~~ as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a) and Section 6.11 (taking account of Section 6.11(b)), the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11 (taking account of Section 6.11(b)), any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) except as relates to a Mortgage Loan that the Master Servicer or the Special Servicer, as applicable, is servicing pursuant to its respective duties herein (in which case such servicer shall give notice to the Trustee of the initiation), initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass-Through Certificates Series 2000-C4)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans (other than the 2004-C15 Serviced Mortgage Loans) and Companion Loans (other than the 175 West Jackson Companion Loans and the 180 Maiden Lane Companion Loans) that ~~it is~~ xxxx xs obligated to service ~~and administer pursuant~~ anx xxxxxxxxxx xxrsuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided, in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans (in each case, other than the 2004-C15 Serviced Mortgage Loans and their related Companion Loans) that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan (other than ~~a Corrected~~ the 2004-C15 Serviced Mortgage ~~Loan~~Loans and their related Companion Loans) and REO Property and shall render such services with respect to all Mortgage Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein~~. (b) Subject to Section 3.01(a)~~; provided, further, however, that the Master Servicer ~~and~~ shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer ~~each shall have full power and authority, acting alone,~~ to ~~do or cause~~ provide sufficient information to ~~be done any and all things in connection~~ the Master Servicer to comply with such ~~servicing and administration which it may deem necessary~~ duties or ~~desirable~~failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, that the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. ~~Without limiting~~ All references herein to the ~~generality of the foregoing, each~~ respective duties of the Master Servicer and the Special Servicer, and to the areas in ~~its own name~~which they may exercise discretion, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and shall be subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer3. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C16)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, and in the best interests and for the benefit of the ~~Certificateholders,~~ Certificateholders in accordance with any and all applicable laws and the terms of this Agreement, ~~the Insurance Policies~~ and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. (b) Subject to Section 3.01(a)) and the terms and provisions of this Agreement, the Master Servicer and the Special Servicer each shall have full power and authority, acting ~~alone~~alone or, subject to Section 3.22, through Sub-Servicers, in which case the Sub-Servicers shall so act (including the execution of documents on behalf of the Master Servicer on behalf of the Trustee described in clause (i) and clause (iii) of the next sentence; provided, however, that execution of the documents described in clause (iii) of the next sentence shall require the consent of the Master Servicer), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Banc of Amercia Com Mort Pas Thru Cer Series 2000-2)

Administration of the Mortgage Loans. (a) ~~Each~~ Subject to Section 3.26 hereof, each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the Certificateholders, in accordance with any and all applicable ~~laws~~ laws, the terms of this Agreement and the terms of ~~this Agreement, the Insurance Policies and~~ the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; provided~~, however~~, that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent~~. (d) In~~ . Unless the ~~event that any two or more Mortgage Loans are cross-collateralized with each other~~same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)

Administration of the Mortgage Loans. (a) All of the Serviced Mortgage Loans and Administered REO Properties are to be serviced and administered by the Master Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and the Special Servicer shall service and administer the Serviced Mortgage Loans and Administered REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of a Serviced Loan Combination, for the benefit of the Certificateholders and the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this Agreement, ; (iii) the ~~Insurance Policies and~~ express terms of the respective Serviced Mortgage Loans ~~and~~and any and all related intercreditor, co-lender or similar agreements (including with respect to performing the duties of the holders of the respective Serviced Mortgage Loans thereunder (to the extent not inconsistent with this Agreement and to the extent consistent with the Servicing Standard)); and (iv) to the extent consistent with the foregoing, the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Serviced Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the ~~foregoing,~~ foregoing and subject to Section 3.21, (i) the Master Servicer shall service and administer all of the Performing Serviced Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans~~ Loan and Administered REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially~~ Performing Serviced Mortgage Loans ~~and REO Properties~~ as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to ~~Section~~ Sections 3.01(a), 3.20, 6.11 and 6.12, the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone (or, to the extent contemplated by Section 3.22 of this Agreement, through subservicers), to do or cause to be done any and all things in connection with ~~such~~ the servicing and administration ~~which~~ contemplated by Section 3.01(a) that it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is ~~hereby~~ authorized and empowered by the Trustee and, to the extent provided in the related Co-Lender Agreement, each related Serviced Non-Trust Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee and such Serviced Non-Trust Mortgage Loan Noteholder or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections ~~3.08~~ 3.01(a), 3.20, 6.11 and ~~3.20~~6.12, any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or ~~discharge~~discharge or of assignment, and all other comparable instruments; and (iv) any -148- and all instruments that such party may be required to execute on behalf of the Trustee in connection with the defeasance of a Serviced Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Co-Lender Agreement; and, with respect to each Loan Combination, the parties hereto further recognize the respective rights and obligations of the Trust, as holder of the related Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan Noteholder(s) under the related Co-Lender Agreement. (d) With respect to any Serviced Loan Combination, in the event that neither the related Trust Mortgage Loan nor the related REO Property (or any interest therein) is an asset of the Trust Fund and, except as contemplated in the second paragraph of this Section 3.01(d), in accordance with the related Co-Lender Agreement, the servicing and administration of such Serviced Loan Combination and any related REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Serviced Loan Combination or (ii) if expressly provided for in the related Co-Lender Agreement) the Master Servicer and, if such Serviced Loan Combination is then being specially serviced hereunder or the related Mortgaged Property has become an REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Serviced Loan Combination and the related Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Serviced Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Serviced Loan Combination or any related REO Property, as applicable, has not been entered into as contemplated by the related Co-Lender Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Co-Lender Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Serviced Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such Serviced Loan Combination and/or any related REO Property, for the benefit of the respective holders of such Serviced Loan Combination, under this Agreement as if such Serviced Loan Combination or any related REO Property were the sole assets subject hereto, with certain references in this Agreement applicable to the Trust, the Trustee, the Certificates, the Certificateholders (or any subgroup thereof) or any representative of any such Certificateholders, all being construed to refer to such similar terms as are applicable to the then current holder of the Mortgage Note for the related Serviced Combination Trust Mortgage Loan. (e) The Master Servicer shall use efforts consistent with the Servicing Standard to have prepared, executed (with the cooperation of the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) in obtaining requisite signatures, if applicable) and delivered by the applicable party (and included in the Servicing File), not later than the later of (i) 30 days following the Master Servicer's receipt of the subject franchisor comfort letter, guaranty of payment or letter of credit and (ii) the expiration of the period that may be required for such transfer or assignment pursuant to the terms of the applicable franchisor comfort letter, guaranty of payment or letter of credit, if any, (A) with respect to any Serviced Mortgage Loan secured by a hospitality property (as identified on Schedule VI hereto) (and with respect to which a franchise agreement constitutes part of the related Mortgage File on the Closing Date), any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related franchisor comfort letter; and (B) with respect to any Serviced Mortgage Loan that has a related guaranty or letter of credit that constitutes part of the related Mortgage File on the Closing Date, any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related guaranty of payment or letter of credit. In the event, with respect to a Serviced Trust Mortgage Loan with a related letter of credit, it is determined by the Master Servicer that a draw under such letter of credit has become necessary under the terms thereof prior to the assignment under clause (B) of the preceding sentence having been effected, the Master Servicer shall direct (in writing) the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) to make such draw or to cause such draw to be made on behalf of the Trustee, and, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, use its best efforts to cause such draw to be made; provided that neither the Depositor nor the UBS Mortgage Loan Seller shall have any liability in connection with the determination to make, or the making of, such draw (other than to remit the proceeds of such draw to the Master Servicer). (f) The relationship of each of the Master Servicer and the Special Servicer to the ~~Trustee~~ Trustee, to the Serviced Non-Trust Mortgage Loan Noteholders and to each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C7)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Union National Bank Com Mort Pas THR Cert Ser 2002 C1)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, and in the best interests and for the benefit of the ~~Certificateholders,~~ Certificateholders in accordance with any and all applicable laws and the terms of this Agreement, ~~the Insurance Policies~~ and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. (b) Subject to Section 3.01(a)) and the terms and provisions of this Agreement, the Master Servicer and the Special Servicer each shall have full power and authority, acting ~~alone~~alone or, subject to Section 3.22, through Sub-Servicers, in which case the Sub-Servicers shall so act (including the execution of documents on behalf of the Master Servicer on behalf of the Trustee described in clause (i), clause (ii) and clause (iii) of the next sentence; provided, however, that execution of the documents described in clause (iii) of the next sentence shall require the consent of the Master Servicer), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass-Through Certificate Series 2000-1)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and other assets of the Trust that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, and in the best interests and for the benefit of the Certificateholders, in accordance with any and all applicable laws and the terms of this ~~Agreement, the Insurance Policies~~ Agreement and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information ~~and~~ from the Special Servicer and, based thereon, prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans), and further to render such ~~incidental~~ other services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; and provided, further, that the Special Servicer shall render such services with respect to Mortgage Loans (in addition to the Specially Serviced Mortgage Loans) as are specifically provided for herein. (b) Subject to Section 3.01(a), the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, each of the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with ~~it,~~ it are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)

Administration of the Mortgage Loans. (a) All of the Mortgage Loans and REO Properties are to be serviced and administered by the Master Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of a Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Mortgage Loan Noteholder(s)), as determined in the good faith and reasonable judgment of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this Agreement, ; (iii) the ~~Insurance Policies and~~ express terms of the respective Mortgage Loans ~~and~~and any and all related intercreditor, co-lender or similar agreements (including with respect to performing the duties of the holders of the respective Trust Mortgage Loans thereunder (to the extent not inconsistent with this Agreement and to the extent consistent with the Servicing Standard)); and (iv) to the extent consistent with the foregoing, the Servicing Standard. The Master Servicer or the Special Servicer, as applicable in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard. Without limiting the ~~foregoing,~~ foregoing and subject to Section 3.21, (i) the Master Servicer shall service and administer all of the Performing Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage ~~Loans~~ Loan and REO ~~Properties (~~Property and ~~the related REO Loans), and further to~~ shall render such ~~incidental~~ services with respect to ~~any Specially Serviced~~ Performing Mortgage Loans ~~and REO Properties~~ as are specifically provided for herein. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to ~~Section~~ Sections 3.01(a), 3.20, 6.11 and 6.12, the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone (or, to the extent contemplated by Section 3.22 of this Agreement, through subservicers), to do or cause to be done any and all things in connection with ~~such~~ the servicing and administration ~~which~~ contemplated by Section 3.01(a) that it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is ~~hereby~~ authorized and empowered by the Trustee and, to the extent provided in the related Co-Lender Agreement, each related Non-Trust Mortgage Loan Noteholder (if any) to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee and such Non-Trust Mortgage Loan Noteholder or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections ~~3.08~~ 3.01(a), 3.20, 6.11 and ~~3.20~~6.12, any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or ~~discharge~~discharge or of assignment, and all other comparable instruments; and (iv) any and all instruments that such party may be required to execute on behalf of the Trustee in connection with the defeasance of a Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The parties hereto acknowledge that each Loan Combination and each Split Trust Mortgage Loan is subject to the terms and conditions of the related Co-Lender Agreement; and, with respect to each Loan Combination and Split Trust Mortgage Loan, the parties hereto further recognize the respective rights and obligations of the Trust, as holder of the related Combination Trust Mortgage Loan, and of the related Non-Trust Mortgage Loan Noteholder(s) under the related Co-Lender Agreement. (d) With respect to any Loan Combination, in the event that neither the related Trust Mortgage Loan nor the related REO Property (or any interest therein) is an asset of the Trust Fund and, except as contemplated in the second paragraph of this Section 3.01(d), in accordance with the related Co-Lender Agreement, the servicing and administration of such Loan Combination and any related REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in the related Co-Lender Agreement) the Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Mortgaged Property has become an REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related REO Property, as applicable, has not been entered into as contemplated by the related Co-Lender Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Co-Lender Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such Loan Combination and/or any related REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as if such Loan Combination or any related REO Property were the sole assets subject hereto, with certain references in this Agreement applicable to the Trust, the Trustee, the Certificates, the Certificateholders (or any -133- subgroup thereof) or any representative of any such Certificateholders, all being construed to refer to such similar terms as are applicable to the then current holder of the Mortgage Note for the related Combination Trust Mortgage Loan. (e) The Master Servicer shall use efforts consistent with the Servicing Standard to have prepared, executed (with the cooperation of the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) in obtaining requisite signatures, if applicable) and delivered by the applicable party (and included in the Servicing File), not later than the later of (i) 30 days following the Master Servicer's receipt of the subject franchisor comfort letter, guaranty of payment or letter of credit and (ii) the expiration of the period that may be required for such transfer or assignment pursuant to the terms of the applicable franchisor comfort letter, guaranty of payment or letter of credit, if any, (A) with respect to any Mortgage Loan secured by a hospitality property (as identified on Schedule VI hereto) (and with respect to which a franchise agreement constitutes part of the related Mortgage File on the Closing Date), any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related franchisor comfort letter; and (B) with respect to any Mortgage Loan that has a related guaranty or letter of credit that constitutes part of the related Mortgage File on the Closing Date, any original transfer or assignment documents necessary to transfer or assign to the Trustee any rights under the related guaranty of payment or letter of credit. In the event, with respect to a Trust Mortgage Loan with a related letter of credit, it is determined by the Master Servicer that a draw under such letter of credit has become necessary under the terms thereof prior to the assignment under clause (B) of the preceding sentence having been effected, the Master Servicer shall direct (in writing) the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) to make such draw or to cause such draw to be made on behalf of the Trustee, and, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, use its best efforts to cause such draw to be made; provided that neither the Depositor nor the UBS Mortgage Loan Seller shall have any liability in connection with the determination to make, or the making of, such draw (other than to remit the proceeds of such draw to the Master Servicer). (f) The relationship of each of the Master Servicer and the Special Servicer to the ~~Trustee~~ Trustee, to the Non-Trust Mortgage Loan Noteholders and to each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C3)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and Companion Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided that in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, that the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. With respect to the [__________] Loan, in the event that it or any successor REO Loan is no longer part of the Mortgage Pool, then (upon request) the Master Servicer and the Special Servicer will continue to service and administer the related Loan Pair or any related REO Property, as and to the extent contemplated by the related Intercreditor Agreement. The parties hereto acknowledge that the [__________] Serviced Mortgage Loan and its related Companion Loan is being serviced and administered under the [__________] Pooling and Servicing Agreement. The Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have no obligation or authority (i) to service and administer the [__________] Serviced Mortgage Loan or its related Companion Loan (except for the limited duties with respect to the [__________] Serviced Mortgage Loan expressly provided herein), (ii) to supervise the [__________] Master Servicer, the [__________] Special Servicer or the [__________] Trustee or (iii) to make Servicing Advances or P&I Advances (except to the limited extent described in Section 4.03 with respect to P&I Advances to be made by the Master Servicer or the Trustee on the [__________] Serviced Mortgage Loan). In addition to any other obligations expressly set forth herein by specific reference to the [__________] Serviced Mortgage Loan, the Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have the following obligations with respect to the [__________] Serviced Mortgage Loan, as the case may be: (i) The Trustee and the Paying Agent shall have the obligation described under Section 2.02 with respect to the Mortgage File for the [__________] Serviced Mortgage Loan; (ii) Each of the Master Servicer, the Special Servicer and the Trustee shall have the obligations applicable to such party under Section 2.03 with respect to the [__________] Serviced Mortgage Loan; (iii) The Master Servicer shall have the obligations described under Sections 3.04 and 3.05 with respect to all amounts received from the [__________] Master Servicer with respect to the [__________] Serviced Mortgage Loan; (iv) The Trustee shall have the obligations described under Section 3.10 with respect to the Mortgage File for the [__________] Serviced Mortgage Loan; (v) Upon receipt of information and reports on the [__________] Serviced Mortgage Loan from the [__________] Master Servicer, the Master Servicer shall include such information in the reports and notices required under Section 3.12; (vi) The Master Servicer and the Paying Agent shall each have the obligations applicable to such party under Section 3.15 with respect to information and reports it has received regarding the [__________] Serviced Mortgage Loan; (vii) Each of the Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have the obligations applicable to such party under Section 3.18 with respect to the [__________] Serviced Mortgage Loan; and (viii) The Master Servicer shall have the obligations described under Section 3.19(a) with respect to any Prepayment Interest Shortfall on the [__________] Serviced Mortgage Loan. The obligation of the Master Servicer to provide information and collections to the Paying Agent and the Certificateholders with respect to the [__________] Serviced Mortgage Loan shall be dependent on its receipt of the corresponding information and collections from the [__________] Master Servicer or the [__________] Special Servicer. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Intercreditor Agreement, the Companion Holders to execute and deliver, on behalf of the ~~Certificateholders~~ Certificateholders, the Companion Holders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(h). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer; provided, further, that, the Master Servicer and the Special Servicer shall not, without the Trustee's written consent, (A) initiate any action in the Trustee's name without indicating the Master Servicer's or Special Servicer's representative capacity or (B) cause the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event ~~that any two or more Mortgage Loans are cross-collateralized with each other,~~ shall the Master Servicer make a Servicing Advance with respect to any Companion Loan to the extent the related Co-Lender Loan has been paid in full or ~~Special Servicer,~~ is no longer included in the Trust Fund. (e) Servicing and administration of each Companion Loan shall continue hereunder for so long as ~~applicable,~~ the corresponding Co-Lender Loan or any related REO Property is part of the Trust Fund or for such longer period as any amounts payable by the related Companion Holder to or for the benefit of the Trust Fund or any party hereto in accordance with the ~~terms of~~ related Intercreditor Agreement remain due and owing; provided, however, if any Companion Loan is securitized, the Master Servicer's servicing obligations and duties with respect to the related Companion Loan shall be limited to those obligations and duties described in the related Intercreditor Agreement and this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Commercial Mortgage Securities Inc)

Administration of the Mortgage Loans. (a) Each of the Master ~~Servicer~~ Servicers and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of any Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Noteholder(s)) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of a Loan Combination, the terms of the related Loan Combination Intercreditor Agreement (which, in the event of any conflict with this Agreement, shall control), to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master ~~Servicer~~ Servicers shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as are specifically provided for herein; provided that the Master Servicers shall continue to ~~which a~~ receive payments, and prepare, or cause to be prepared, all reports required hereunder, except for the reports specified herein, as prepared by the Special Servicer with respect to the Specially Serviced Mortgage Loans, as if no Servicing Transfer Event ~~has occurred,~~ had occurred and ~~(y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder~~ with respect to ~~any Specially Serviced Mortgage Loans and~~ the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ the Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, that neither Master Servicer shall be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to such Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicers and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a)) and Section 6.11, the Master ~~Servicer~~ Servicers and the Special Servicer each shall have full power and authority, acting ~~alone~~alone (or, pursuant to Section 3.22, through one or more Sub-Servicers), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master ~~Servicer~~ Servicers and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Loan Combination Intercreditor Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee ~~or any of them:~~ and each such Non-Trust Noteholder, (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the applicable Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by such Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by ~~the~~ either Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicers nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name (or, in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's name) without indicating the representative capacity of the applicable Master Servicer or the Special Servicer, as the case may be; or (ii) take any action with the intent to cause, and that actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master ~~Servicer~~ Servicers and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer,~~ venture or partner or agent. Unless the same Person acts as both a Master Servicer and the Special Servicer, a Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by a Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event shall either Master Servicer, the Trustee or any Fiscal Agent make a Servicing Advance with respect to any Non-Trust Loan to the extent the related Trust Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Neither the Master Servicers nor the Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement. (f) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Loan Combination Intercreditor Agreement. The parties hereto further recognize the respective rights and obligations of the related Non-Trust Noteholder(s) under the related Loan Combination Intercreditor Agreement, including with respect to (i) the allocation of collections on or in respect of the applicable Loan Combination, and the making of payments, to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, (ii) the allocation of expenses and/or losses relating to the subject Loan Combination to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, and (iii) the right of a B-Note Loan Holder or its designee to purchase the related Trust Mortgage Loan in accordance with the related Loan Combination Intercreditor Agreement. (g) With respect to any Loan Combination that includes a Trust Mortgage Loan, in the event that either the related Trust Mortgage Loan or the related Loan Combination REO Property (or any ~~two or more Mortgage Loans are cross-collateralized with each other~~interest therein) is no longer an asset of the Trust Fund and, except as contemplated in the ~~Master Servicer or Special Servicer, as applicable~~second paragraph of this Section 3.01(g), in accordance with the ~~terms~~ related Loan Combination Intercreditor Agreement, the servicing and administration of such Loan Combination and any related Loan Combination REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in or pursuant to the related Loan Combination Intercreditor Agreement) the applicable Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Loan Combination Mortgaged Property has become a Loan Combination REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the applicable Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Loan Combination Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Loan Combination that includes a Trust Mortgage Loan, if at any time neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related Loan Combination REO Property, as applicable, has not been entered into as contemplated by the related Loan Combination Intercreditor Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Loan Combination Intercreditor Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the applicable Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such ~~Mortgage Loans~~ Loan Combination and/or any related Loan Combination REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as ~~a single Mortgage~~ if such Loan ~~as and when it deems necessary and appropriate, consistent with~~ Combination or any related Loan Combination REO Property were the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"sole assets subject hereto.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-2)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans (other than the Non-Serviced Mortgage Loans) and Companion Loans (other than the Non-Serviced Companion Loans) that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided that in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section ~~3.21~~3.21 and Section 3.30, and without limitation of Section 4.03 and any other provision of this Agreement that expressly requires the Master Servicer or the Special Servicer to take action with respect to a Non-Serviced Mortgage Loan as specified in the succeeding paragraph, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans (other than the Non-Serviced Mortgage Loans and their related Non-Serviced Companion Loans) that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan (other than ~~a Corrected~~ the Non-Serviced Mortgage ~~Loan~~Loans and their related Non-Serviced Companion Loans) and related REO Property and shall render such services with respect to all such Mortgage Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein or as the Special Servicer reasonably requests to enable it to perform its responsibilities under this Agreement; provided, further, however, the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. The parties hereto acknowledge that the Non-Serviced Mortgage Loans and their related Non-Serviced Companion Loans are subject to a related Intercreditor Agreement and are being serviced and administered under the related Non-Serviced Pooling and Servicing Agreement. The Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have no obligation or authority (i) to service and administer the Non-Serviced Mortgage Loans or their related Non-Serviced Companion Loans (except for the limited duties with respect to the Non-Serviced Mortgage Loans expressly provided herein), (ii) to supervise the related Non-Serviced Master Servicer, related Non-Serviced Special Servicer, related Non-Serviced Trustee or (iii) to make Servicing Advances or P&I Advances (except to the limited extent described in Section 4.03 with respect to P&I Advances to be made by the Master Servicer or the Trustee on the Non-Serviced Mortgage Loans). In addition to any other obligations expressly set forth herein by specific reference to the Non-Serviced Mortgage Loans, the Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have the following obligations with respect to the Non-Serviced Mortgage Loans, as the case may be: (i) The Trustee and the Paying Agent shall have the obligations described under Section 2.02 with respect to the Mortgage File for the Non-Serviced Mortgage Loans; (ii) Each of the Master Servicer, the Special Servicer and the Trustee shall have the obligations applicable to such party under Section 2.03 with respect to the Non-Serviced Mortgage Loans; (iii) The Master Servicer shall have the obligations described under Sections 3.04 and 3.05 with respect to all amounts received from the related Non-Serviced Master Servicer with respect to the Non-Serviced Mortgage Loans; (iv) The Trustee shall have the obligations described under Section 3.10 with respect to the Mortgage File for the Non-Serviced Mortgage Loans; (v) Upon receipt of information and reports on the Non-Serviced Mortgage Loans from the related Non-Serviced Master Servicer, the Master Servicer shall include such information in the reports and notices required under Section 3.12; (vi) The Master Servicer and the Paying Agent shall each have the obligations applicable to such party under Section 3.15 with respect to information and reports it has received regarding the Non-Serviced Mortgage Loans; and (vii) The Master Servicer shall have the obligations described under Section 3.19(a) with respect to any Prepayment Interest Shortfall on the Non-Serviced Mortgage Loans. The obligation of the Master Servicer to provide information and collections to the Paying Agent and the Certificateholders with respect to the Non-Serviced Mortgage Loans shall be dependent on its receipt of the corresponding information and collections from the related Non-Serviced Master Servicer or the related Non-Serviced Special Servicer, as applicable. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable, including filing or initiating legal actions or proceedings as the named plaintiff in their representative capacities on behalf of the Trust. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in on behalf of the Trustee and by referencing its ~~own name~~representative capacity, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Intercreditor Agreement, the Companion Holders to execute and deliver, on behalf of the ~~Certificateholders~~ Certificateholders, the Companion Holders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(h). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, ~~that~~ the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer; provided, further, the Master Servicer and the Special Servicer shall not, without the Trustee's written consent, (A) initiate any action in the Trustee's name without indicating the Master Servicer's or Special Servicer's representative capacity or (B) cause the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event shall the Master Servicer make a Servicing Advance with respect to any Companion Loan to the extent the related Co-Lender Loan has been paid in full or is no longer included in the Trust Fund. (e) Servicing and administration of each Companion Loan (other than the Non-Serviced Companion Loans) shall continue hereunder for so long as the corresponding Co-Lender Loan (other than the Non-Serviced Mortgage Loans) or any related REO Property is part of the Trust Fund or, subject to the related Intercreditor Agreement, for such longer period as any amounts payable by the related Companion Holder to or for the benefit of the Trust Fund or any party hereto in accordance with the related Intercreditor Agreement remain due and owing; provided, however, if any Companion Loan (other than the Non-Serviced Companion Loans) is securitized, the Master Servicer's servicing obligations and duties with respect to the related Companion Loan shall be limited to those obligations and duties described in the related Intercreditor Agreement and this Agreement. (f) Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the servicing and administration of a Serviced Whole Loan shall continue hereunder (without any ~~two or more~~ further obligation to make P&I Advances) even if the related Mortgage ~~Loans are cross-collateralized~~ Loan is no longer part of the Trust Fund, until such time as a separate servicing agreement is entered into in accordance with ~~each other~~the related Intercreditor Agreement (it being acknowledged that neither the Master Servicer nor the Special Servicer shall be obligated under a separate agreement to which it is not a party). At such time as a separate servicing agreement is entered into, all amounts due to the Master Servicer or Special Servicer, as applicable, ~~in accordance~~ including advances and interest thereon, for the period that the Serviced Whole Loan was not part of the Trust Fund, but was serviced by the Master Servicer or the Special Servicer, as applicable, shall be paid to the Master Servicer or the Special Servicer upon the execution of a separate servicing agreement by the holder of such Serviced Whole Loan or as otherwise agreed to by such holder and the Master Servicer or the Special Servicer, as applicable. (g) Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the Master Servicer's obligations and responsibilities hereunder and the Master Servicer's authority with respect to the Serviced Whole Loans are limited by and subject to the terms of ~~this~~ the related Intercreditor Agreement. The Master Servicer (or, ~~shall service and administer such Mortgage Loans as~~ if a ~~single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage~~ Serviced Whole Loan becomes a Specially Serviced ~~Mortgage~~ Loan, ~~then each other Mortgage Loan that is cross-collateralized~~ the Special Servicer) shall use reasonable efforts consistent with ~~it shall also become a Specially~~ the Servicing Standard to obtain the benefits of the rights of the Trust Fund (as holder of the related Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in ) under the ~~definition of "Specially Serviced Mortgage Loan"~~related Intercreditor Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C33)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, and in the best interests and for the benefit of the Certificateholders, in accordance with any and all applicable laws and the terms of this Agreement, the Insurance Policies and the respective Mortgage Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall service and administer (x) each Mortgage Loan (other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and REO Properties (and the related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein. (b) Subject to Section 3.01(a)) and the terms and provisions of this Agreement, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be, any limited powers of attorney and other documents necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The relationship of each of the Master Servicer and Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan". (e) Notwithstanding anything herein to the contrary, the Master Servicer only (and not the Special Servicer, notwithstanding that the Blue Cross Loan may have become a Specially Serviced Mortgage Loan) shall service the Blue Cross Participation Interest in accordance with the Blue Cross Participation Agreement, and in connection therewith, the Master Servicer shall (i) receive the payments due and payable with respect to the Blue Cross Participation Interest and deposit such payments into the Certificate Account in accordance with Section 3.04 of this Agreement, (ii) enforce the Blue Cross Participation Agreement and all other documentation with respect thereto in accordance with the Blue Cross Participation Agreement and this Agreement; (iii) in the event the servicer under the Other Agreement is not the Master Servicer hereunder, obtain an Appraisal pursuant to Section 3.19(b) for the purpose of calculating the Appraisal Reduction Amount and (iv) take such other actions with respect thereto as shall be required in accordance with the Servicing Standard and this Agreement, including without limitation, making P&I Advances (but not Servicing Advances, which shall be the obligation of the servicer under the Other Agreement) with respect to the Trust Fund's Blue Cross Participation Interest in the Blue Cross Loan as evidenced by the Blue Cross Participation Agreement to the extent and in the manner provided herein with respect to the making of P&I Advances for other Credit Lease Loans. The Master Servicer shall pay as an expense of the Trust Fund the Blue Cross Participant's share of fees, expenses and advances as required under the Blue Cross Participation Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nationslink Funding Corp 1999-LTL-1 Commer Loan Pas THR Cer)

Administration of the Mortgage Loans. (a) ~~Each of the~~ The Master Servicer and the Special Servicer shall each service and administer the Serviced Mortgage Loans and any Administered REO Properties that it is obligated to service and administer pursuant to this ~~Agreement on behalf of the Trustee~~Agreement, ~~and in the best interests and~~ for the benefit of the Certificateholders, as a collective whole, in accordance with any and all applicable ~~laws and~~ laws, in accordance with the express terms of this ~~Agreement, the Insurance Policies~~ Agreement and the ~~respective~~ related Mortgage ~~Loans~~ Loan Documents and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. The Master Servicer or the Special Servicer, as applicable, in accordance with this Agreement, shall service and administer each Cross-Collateralized Group as a single Serviced Mortgage Loan as and when necessary and appropriate consistent with the Servicing Standard and applicable law and in accordance with this Agreement. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all ~~Mortgage Loans as to which no Servicing Transfer Event has occurred and all Corrected~~ Performing Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer (xX) each Serviced Mortgage Loan ~~(other than a Corrected Mortgage Loan)~~ as to which a Servicing Transfer Event has ~~occurred~~occurred and is continuing, and (yY) each Administered REO Property; provided, however, that the Master Servicer shall continue to collect information and, subject to its receipt of information from the Special Servicer as provided herein, prepare and ~~prepare~~ deliver all reports to the Trustee required hereunder with respect to any Specially Serviced Mortgage Loans and Administered REO Properties (and the related REO Loans), to process payments at the direction of the Special Servicer with respect to any Specially Serviced Mortgage Loans and ~~further~~ Administered REO Properties, and to render such incidental services with respect to any Specially Serviced Mortgage Loans and Administered REO Properties as are specifically provided for herein; and provided, further, that the Special Servicer may communicate with the Borrower under any Performing Serviced Mortgage Loan in order to obtain information required to be provided by such Borrower under the related Mortgage Loan Documents that the Master Servicer has been unsuccessful in obtaining and shall render such incidental services with respect to any Performing Serviced Mortgage Loans as are specifically provided for herein. The Master Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged Property. (b) Subject to Section 3.01(a), the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting ~~alone~~alone or through Sub-Servicers, to do or cause to be done any and all things in connection with such servicing and administration ~~which~~ referred to in Section 3.01(a) that it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own ~~name~~name or in the name of the Trustee, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and other related collateral; and (ii) in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; and (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. In addition, without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is authorized and empowered by the Trustee to execute and deliver, in accordance with the Servicing Standard and subject to Sections 3.08 and 3.20, any and all assumptions, modifications, waivers, substitutions, extensions, amendments or consents to or with respect to any documents contained in the related Mortgage File. Subject to Section 3.10, the Trustee shall, at the written request of a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or cause to be so furnished, to the Master Servicer ~~and~~ or the Special Servicer, as ~~the case may be~~appropriate, any limited powers of attorney and other documents (each of which shall be prepared by the Master Servicer or the Special Servicer, as applicable) necessary or appropriate to enable ~~them~~ it to carry out ~~their~~ its servicing and administrative duties hereunder, including for purposes of drawing on any letter of credit; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. (c) The parties hereto acknowledge that, pursuant to the [Separately Serviced Mortgage Loan] Intercreditor Agreements: (i) until the occurrence of a [Separately Serviced Mortgage Loan] Change of Servicing Control Event, the [Separately Serviced Mortgage Loan] Loan Group is to be serviced and administered by the [Other CMBS Series] Master Servicer and the [Other CMBS Series] Special Servicer in accordance with the [Other CMBS Series PSA] (provided that the Master Servicer is responsible for performing such services with respect to the [Separately Serviced Mortgage Loan] as are specifically set forth in Articles I through XI of this Agreement); and (ii) upon the occurrence of a [Separately Serviced Mortgage Loan] Change of Servicing Control Event, the [Separately Serviced Mortgage Loan] Loan Group will be serviced and administered by the Master Servicer and Special Servicer in accordance with Article XII of this Agreement; provided that, if the [Other CMBS Series PSA] is ever to be replaced by any other [Separately Serviced Mortgage Loan] Servicing Agreement, then prior to exercising any consent right that the Trustee may have with respect to that successor [Separately Serviced Mortgage Loan] Servicing Agreement, the Trustee shall obtain written confirmation from each Rating Agency that such successor [Separately Serviced Mortgage Loan] Servicing Agreement will not result in an Adverse Rating Event with respect to any Class of Rated Certificates. For so long as (i) the [Separately Serviced Mortgage Loan] or any [Separately Serviced Mortgage Loan] REO Loan are part of the Mortgage Pool and (ii) the [Separately Serviced Mortgage Loan] Loan Group and/or any [Separately Serviced Mortgage Loan] REO Property are being serviced and administered under any [Separately Serviced Mortgage Loan] Servicing Agreement, the Master Servicer shall use reasonable efforts to monitor the performance and, to the extent that it has standing to do so, enforce the obligations of the [Separately Serviced Mortgage Loan] Master Servicer and the [Separately Serviced Mortgage Loan] Special Servicer, respectively, under such [Separately Serviced Mortgage Loan] Servicing Agreement. Such enforcement, including the legal prosecution of claims and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as the Master Servicer, in its reasonable judgment, would require were it the owner of the [Separately Serviced Mortgage Loan]. The reasonable costs and expenses incurred by the Master Servicer in connection with such enforcement shall be paid by, and reimbursable as, Servicing Advances. (d) The relationship of each of the Master Servicer and the Special Servicer to the Trustee and, unless they are the same Person, each other under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or or, except as specifically set forth herein, agent. (d) In the event that any two or more Mortgage Loans are cross-collateralized with each other, the Master Servicer or Special Servicer, as applicable, in accordance with the terms of this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Securities Inc)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and REO Properties that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the Certificateholders, as determined in the good faith and reasonable judgement of the Master Servicer or the Special Servicer, as the case may be, in accordance ~~with~~ with: (i) any and all applicable ~~laws and~~ laws; (ii) the express terms of this ~~Agreement, the Insurance Policies~~ Agreement and the respective Mortgage ~~Loans and,~~ Loans; and (iii) to the extent consistent with the foregoing, ~~in accordance with~~ the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans that are not Specially Serviced Mortgage Loans and shall render such services with respect to the Specially Serviced Mortgage Loans as ~~to which no Servicing Transfer Event has occurred and all Corrected Mortgage Loans~~are specifically provided for herein, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred,~~ and ~~(y) each~~ REO ~~Property; provided, however, that the Master Servicer~~ Property and shall ~~continue to collect information and prepare all reports to the Trustee required hereunder~~ render such services with respect to ~~any~~ the Mortgage Loans that are not Specially Serviced Mortgage Loans ~~and REO Properties (and the related REO Loans), and further to render such incidental services with respect to any Specially Serviced Mortgage Loans and REO Properties~~ as are specifically provided for herein. (b) Subject to Section 3.01(a) and Section 6.08 (taking account of Section 6.08(b)), the Master Servicer and the Special Servicer shall each ~~shall~~ have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee to execute and deliver, on behalf of the Certificateholders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.08 (taking account of Section 6.08(b)), any and all modifications, extensions, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full release or ~~discharge~~discharge or of assignment, and all other comparable instruments; and (iv) any and all instruments that such party may be required to execute on behalf of the Trustee in connection with the defeasance of a Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's, as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) ~~In the event~~ The Master Servicer shall not be obligated to service in a manner different from any non-Specially Serviced Mortgage Loan any Balloon Loan that ~~any two or more Mortgage Loans are cross-collateralized with each other,~~ is delinquent in respect of its Balloon Payment but as to which a Servicing Transfer Event has not occurred; provided that the Master Servicer ~~or Special Servicer, as applicable, in accordance with~~ shall transfer the ~~terms~~ servicing of ~~this Agreement, shall service and administer~~ such Mortgage ~~Loans as~~ Loan to the Special Servicer upon the occurrence of a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer ~~Events in~~ Event with respect ~~of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"~~thereto.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CDC Commercial Mortgage Trust 2002-Fx1)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and Companion Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders and in the case of the Companion Loans, the related Companion Holder, in accordance with any and all applicable ~~laws and~~ laws, the terms of this ~~Agreement~~Agreement (and, with respect to a Loan Pair, the ~~Insurance Policies and~~ related Intercreditor Agreement), the terms of the respective Mortgage Loans, and, if applicable, the Companion Loans and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided that in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause such servicer to violate the Servicing Standard or the REMIC Provisions. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred~~ and ~~all Corrected~~ the Companion Loans that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans, Companion Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder; provided, further, that the Special Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Master Servicer to provide sufficient information to the extent required herein to the Special Servicer to comply with such duties or failure by the Master Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. With respect to the [__________] Loan, in the event that it or any successor REO Loan is no longer part of the Mortgage Pool, then (upon request) the Master Servicer and the Special Servicer will continue to service and administer the related Loan Pair or any related REO Property, as and to the extent contemplated by the related Intercreditor Agreement. The parties hereto acknowledge that the [__________] Serviced Mortgage Loan and its related Companion Loan is being serviced and administered under the [__________] Pooling and Servicing Agreement. The Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have no obligation or authority (i) to service and administer the [__________] Serviced Mortgage Loan or its related Companion Loan (except for the limited duties with respect to the [__________] Serviced Mortgage Loan expressly provided herein), (ii) to supervise the [__________] Master Servicer, the [__________] Special Servicer or the [__________] Trustee or (iii) to make Servicing Advances or P&I Advances (except to the limited extent described in Section 4.03 with respect to P&I Advances to be made by the Master Servicer or the Trustee on the [__________] Serviced Mortgage Loan). In addition to any other obligations expressly set forth herein by specific reference to the [__________] Serviced Mortgage Loan, the Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have the following obligations with respect to the [__________] Serviced Mortgage Loan, as the case may be: (i) The Trustee and the Paying Agent shall have the obligation described under Section 2.02 with respect to the Mortgage File for the [__________] Serviced Mortgage Loan; (ii) Each of the Master Servicer, the Special Servicer and the Trustee shall have the obligations applicable to such party under Section 2.03 with respect to the [__________] Serviced Mortgage Loan; (iii) The Master Servicer shall have the obligations described under Sections 3.04 and 3.05 with respect to all amounts received from the [__________] Master Servicer with respect to the [__________] Serviced Mortgage Loan; (iv) The Trustee shall have the obligations described under Section 3.10 with respect to the Mortgage File for the [__________] Serviced Mortgage Loan; (v) Upon receipt of information and reports on the [__________] Serviced Mortgage Loan from the [__________] Master Servicer, the Master Servicer shall include such information in the reports and notices required under Section 3.12; (vi) The Master Servicer and the Paying Agent shall each have the obligations applicable to such party under Section 3.15 with respect to information and reports it has received regarding the [__________] Serviced Mortgage Loan; (vii) Each of the Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall have the obligations applicable to such party under Section 3.18 with respect to the [__________] Serviced Mortgage Loan; and (viii) The Master Servicer shall have the obligations described under Section 3.19(a) with respect to any Prepayment Interest Shortfall on the [__________] Serviced Mortgage Loan. The obligation of the Master Servicer to provide information and collections to the Paying Agent and the Certificateholders with respect to the [__________] Serviced Mortgage Loan shall be dependent on its receipt of the corresponding information and collections from the [__________] Master Servicer or the [__________] Special Servicer. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Intercreditor Agreement, the Companion Holders to execute and deliver, on behalf of the ~~Certificateholders~~ Certificateholders, the Companion Holders and the Trustee or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(h). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer; provided, further, that, the Master Servicer and the Special Servicer shall not, without the Trustee’s written consent, (A) initiate any action in the Trustee’s name without indicating the Master Servicer’s or Special Servicer’s representative capacity or (B) cause the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event ~~that any two or more Mortgage Loans are cross-collateralized with each other,~~ shall the Master Servicer make a Servicing Advance with respect to any Companion Loan to the extent the related Co-Lender Loan has been paid in full or ~~Special Servicer,~~ is no longer included in the Trust Fund. (e) Servicing and administration of each Companion Loan shall continue hereunder for so long as ~~applicable,~~ the corresponding Co-Lender Loan or any related REO Property is part of the Trust Fund or for such longer period as any amounts payable by the related Companion Holder to or for the benefit of the Trust Fund or any party hereto in accordance with the ~~terms of~~ related Intercreditor Agreement remain due and owing; provided, however, if any Companion Loan is securitized, the Master Servicer’s servicing obligations and duties with respect to the related Companion Loan shall be limited to those obligations and duties described in the related Intercreditor Agreement and this Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of any Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Noteholder(s)) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of a Loan Combination, the terms of the related Loan Combination Intercreditor Agreement (which, in the event of any conflict with this Agreement, shall control), to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; ~~provided, however,~~ provided that the Master Servicer shall continue to ~~collect information~~ receive payments, and ~~prepare~~ prepare, or cause to be prepared, all reports to required hereunder, except for the ~~Trustee required hereunder~~ reports specified herein as prepared by the Special Servicer, with respect to ~~any~~ the Specially Serviced Mortgage Loans as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ the Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided further, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a), Section 6.11 and Section 6.12, the Master Servicer and the Special Servicer each shall have full power and authority, acting ~~alone~~alone (or, pursuant to Section 3.22, through one or more Sub-Servicers), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Loan Combination Intercreditor Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee ~~or any of them:~~ and each such Non-Trust Noteholder, (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20, Section 6.11 and ~~3.20~~Section 6.12, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name (or, in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's name) without indicating the Master Servicer's or Special Servicer's as applicable, representative capacity; or (ii) take any action with the intent to cause, and that actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer,~~ venture or partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event shall the Master Servicer, the Trustee or any Fiscal Agent make a Servicing Advance with respect to any Non-Trust Loan to the extent the related Trust Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Neither the Master Servicer nor the Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement. (f) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Loan Combination Intercreditor Agreement. The parties hereto further recognize the respective rights and obligations of the related Non-Trust Noteholder(s) under the related Loan Combination Intercreditor Agreement, including with respect to (i) the allocation of collections on or in respect of the applicable Loan Combination, and the making of payments, to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, (ii) the allocation of expenses and/or losses relating to the subject Loan Combination to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, and (iii) the right of a B-Noteholder or its designee (in the case of an A/B Loan Combination) or the Westchester Pari Passu Non-Trust Noteholder or a Westchester Subordinate Noteholder (in the case of the Westchester Loan Combination) to purchase the related Trust Mortgage Loan in accordance with the related Loan Combination Intercreditor Agreement. (g) With respect to any Loan Combination, in the event that neither the related Trust Mortgage Loan nor the related Loan Combination REO Property (or any ~~two or more Mortgage Loans are cross-collateralized with each other~~interest therein) is an asset of the Trust Fund and, except as contemplated in the ~~Master Servicer or Special Servicer, as applicable~~second paragraph of this Section 3.01(g), in accordance with the ~~terms~~ related Loan Combination Intercreditor Agreement, the servicing and administration of such Loan Combination and any related Loan Combination REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in the related Loan Combination Intercreditor Agreement) the Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Loan Combination Mortgaged Property has become a Loan Combination REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Loan Combination Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Loan Combination, if at any time neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related Loan Combination REO Property, as applicable, has not been entered into as contemplated by the related Loan Combination Intercreditor Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Loan Combination Intercreditor Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such ~~Mortgage Loans~~ Loan Combination and/or any related Loan Combination REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as ~~a single Mortgage~~ if such Loan ~~as and when it deems necessary and appropriate, consistent with~~ Combination or any related Loan Combination REO Property were the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan"sole assets subject hereto.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-McP1)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C20)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)

Administration of the Mortgage Loans. (a) Each of the Master ~~Servicer~~ Servicers and the Special Servicer shall service and administer the Serviced Mortgage Loans that it is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (or, in the case of any Loan Combination, for the benefit of the Certificateholders and the related Non-Trust Noteholder(s)) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of a Loan Combination, the terms of the related Loan Combination Intercreditor Agreement (which, in the event of any conflict with this Agreement, shall control), to the extent consistent with the foregoing, in accordance with the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master ~~Servicer~~ Servicers shall service and administer all Serviced Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as are specifically provided for herein; provided that the Master Servicers shall continue to ~~which a~~ receive payments, and prepare, or cause to be prepared, all reports required hereunder, except for the reports specified herein, as prepared by the Special Servicer with respect to the Specially Serviced Mortgage Loans, as if no Servicing Transfer Event ~~has occurred,~~ had occurred and ~~(y) each REO Property; provided, however, that the Master Servicer shall continue to collect information and prepare all reports to the Trustee required hereunder~~ with respect to ~~any Specially Serviced Mortgage Loans and~~ the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ the Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, that neither Master Servicer shall be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to such Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicers and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a), Section 6.11 and, if applicable, Section 6.12, the Master ~~Servicer~~ Servicers and the Special Servicer each shall have full power and authority, acting ~~alone~~alone (or, pursuant to Section 3.22, through one or more Sub-Servicers), to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master ~~Servicer~~ Servicers and the Special Servicer, in its own name, with respect to each of the Serviced Mortgage Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to each Loan Combination Intercreditor Agreement, by the related Non-Trust Noteholder(s), to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the Trustee ~~or any of them:~~ and each such Non-Trust Noteholder, (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08 and~~ Section 3.20, Section 6.11 and, if applicable, Section 6.12, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(i). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the applicable Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by such Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by ~~the~~ either Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicers nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name (or, in the case of a Non-Trust Loan, solely under the related Non-Trust Noteholder's name) without indicating the representative capacity of the applicable Master Servicer or the Special Servicer, as the case may be; or (ii) take any action with the intent to cause, and that actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master ~~Servicer~~ Servicers and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer,~~ venture or partner or agent. No Person acting in any one or more of such capacities shall be responsible for the actions of or failure to act by another Person acting in any one or more of such capacities. (d) In Notwithstanding anything herein to the contrary, in no event shall either Master Servicer, the Trustee or any Fiscal Agent make a Servicing Advance with respect to any Non-Trust Loan to the extent the related Trust Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Neither the Master Servicers nor the Special Servicer shall have any liability for the failure of any Mortgage Loan Seller to perform its obligations under the related Mortgage Loan Purchase Agreement. (f) The parties hereto acknowledge that each Loan Combination is subject to the terms and conditions of the related Loan Combination Intercreditor Agreement. The parties hereto further recognize the respective rights and obligations of the related Non-Trust Noteholder(s) under the related Loan Combination Intercreditor Agreement, including with respect to (i) the allocation of collections on or in respect of the applicable Loan Combination, and the making of payments, to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, (ii) the allocation of expenses and/or losses relating to the subject Loan Combination to such Non-Trust Noteholder(s) in accordance with the related Loan Combination Intercreditor Agreement, and (iii) the right of a B-Note Loan Holder or its designee to purchase the related Trust Mortgage Loan in accordance with the related Loan Combination Intercreditor Agreement. (g) With respect to any Loan Combination that includes a Serviced Trust Mortgage Loan, in the event that either the related Trust Mortgage Loan or the related Loan Combination REO Property (or any ~~two or more Mortgage Loans are cross-collateralized with each other~~interest therein) is no longer an asset of the Trust Fund and, except as contemplated in the ~~Master Servicer or Special Servicer, as applicable~~second paragraph of this Section 3.01(g), in accordance with the ~~terms~~ related Loan Combination Intercreditor Agreement, the servicing and administration of such Loan Combination and any related Loan Combination REO Property are to be governed by a separate servicing agreement and not by this Agreement, then (either (i) with the consent or at the request of the holders of each Mortgage Loan comprising such Loan Combination or (ii) if expressly provided for in or pursuant to the related Loan -109- Combination Intercreditor Agreement) the applicable Master Servicer and, if such Loan Combination is then being specially serviced hereunder or the related Loan Combination Mortgaged Property has become a Loan Combination REO Property, the Special Servicer, shall continue to act in such capacities under such separate servicing agreement; provided that such separate servicing agreement shall be reasonably acceptable to the applicable Master Servicer and/or the Special Servicer, as the case may be, and shall contain servicing and administration, limitation of liability, indemnification and servicing compensation provisions substantially similar to the corresponding provisions of this Agreement, except for the fact that such Loan Combination and the related Loan Combination Mortgaged Property shall be the sole assets serviced and administered thereunder and the sole source of funds thereunder. Further, with respect to any Loan Combination that includes a Serviced Trust Mortgage Loan, if at any time neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, and if a separate servicing agreement with respect to such Loan Combination or any related Loan Combination REO Property, as applicable, has not been entered into as contemplated by the related Loan Combination Intercreditor Agreement and the prior paragraph (for whatever reason, including the failure to obtain any rating agency confirmation required in connection therewith pursuant to the related Loan Combination Intercreditor Agreement), and notwithstanding that neither the related Trust Mortgage Loan nor any related Loan Combination REO Property (or any interest therein) is an asset of the Trust Fund, then, unless directed otherwise by the then current holders of the Mortgage Notes comprising such Loan Combination, the applicable Master Servicer and, if applicable, the Special Servicer shall continue to service and administer such ~~Mortgage Loans~~ Loan Combination and/or any related Loan Combination REO Property, for the benefit of the respective holders of such Loan Combination, under this Agreement as if such Loan Combination or any related Loan Combination REO Property were the sole assets subject hereto but shall not be required to make any Advances with respect thereto. (h) Nothing contained in this Agreement shall limit the ability of either Master Servicer to lend money to or accept deposits from or otherwise generally engage in any kind of business or dealings with any Mortgagor as though such Master Servicer was not a ~~single~~ party to this Agreement or to the transactions contemplated hereby; provided, however, that no such loan made by such Master Servicer may be secured, in whole or in part by any Mortgaged Property securing a Mortgage Loan as or by ownership interests in a Mortgagor, and ~~when it deems necessary and appropriate~~provided, ~~consistent~~ further, that the foregoing provision shall not act to modify, qualify or limit a Master Servicer's obligation to act in accordance with the Servicing Standard~~. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan~~. (i) In clarification of, ~~then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly~~and neither in addition to nor in deletion of the duties and obligations of the Master Servicers or the Special Servicer pursuant to this Agreement, no ~~Cross~~provision herein contained shall be construed as an express or implied guarantee by either Master Servicer or the Special Servicer of the collectibility or recoverability of payments on the Mortgage Loans or shall be construed to impair or adversely affect any rights or benefits provided by this Agreement to such Master Servicer or the Special Servicer (including with respect to Master Servicing Fees or the right to be reimbursed for Advances). Any provision in this Agreement for any Advance by a Master Servicer, the Special Servicer or the Trustee is intended solely to provide liquidity for the benefit of the Certificateholders and, if applicable, the Non-~~Collateralized~~ Trust Noteholders, and not as credit support or otherwise to impose on any such Person the risk of loss with respect to one or more of the Mortgage Loans. No provision hereof shall be construed to impose liability on either Master Servicer or the Special Servicer for the reason that any recovery to the Certificateholders (or, in the case of any Loan ~~shall subsequently become a Corrected Mortgage Loan~~Combination, ~~unless~~ to the Certificateholders and ~~until all Servicing Transfer Events~~ the related Non-Trust Noteholder(s)) in respect of ~~each other~~ a Mortgage Loan ~~that~~ at any time after a determination of present value recovery made in its reasonable and good faith judgment in accordance with the Servicing Standard by such Master Servicer or the Special Servicer hereunder at any time is ~~cross-collateralized with it, are remediated or otherwise addressed as contemplated~~ less than the amount reflected in ~~the definition of "Specially Serviced Mortgage Loan"~~such determination.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2007-6)

Administration of the Mortgage Loans. (a) Each of the Master Servicer and the Special Servicer shall service and administer the Mortgage Loans and the Companion Loans that it each is obligated to service and administer pursuant to this Agreement on behalf of the Trustee, ~~and in the best interests and~~ for the benefit of the ~~Certificateholders~~Certificateholders (and in the case of the Companion Loans, the Companion Holders, the Certificateholders and the Trust Fund, as a collective whole, taking into account that the Companion Loans are subordinate to the related AB Mortgage Loans to the extent set forth in the related Intercreditor Agreement) in accordance with any and all applicable ~~laws and~~ laws, the terms of this Agreement, the ~~Insurance Policies and~~ terms of the respective Mortgage Loans and, in the case of the Companion Loans, the related Intercreditor Agreement, and, to the extent consistent with the foregoing, in accordance with the Servicing Standard. With respect to any Loan Pair, in the event of a conflict between this Agreement and the related Intercreditor Agreement, the Intercreditor Agreement will control; provided, in no event shall the Master Servicer or Special Servicer take any action or omit to take any action in accordance with the terms of any Intercreditor Agreement that would cause the Master Servicer or the Special Servicer, as the case may be, to violate the Servicing Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer shall service and administer all Mortgage Loans ~~as to which no Servicing Transfer Event has occurred and all Corrected~~ that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer shall service and administer ~~(x)~~ each Specially Serviced Mortgage Loan ~~(other than a Corrected~~ and REO Property and shall render such services with respect to all Mortgage ~~Loan)~~ Loans and REO Properties as ~~to which a Servicing Transfer Event has occurred, and (y) each REO Property~~are specifically provided for herein; provided~~, however~~, that the Master Servicer shall continue to ~~collect information~~ receive payments, make all calculations, and ~~prepare~~ prepare, or cause to be prepared, all reports ~~to the Trustee~~ required hereunder with respect to ~~any~~ the Specially Serviced Mortgage ~~Loans~~ Loans, except for the reports specified herein as prepared by the Special Servicer, as if no Servicing Transfer Event had occurred and with respect to the REO Properties (and the related REO Loans)) as if no REO Acquisition had occurred, and ~~further~~ to render such incidental services with respect to ~~any~~ such Specially Serviced Mortgage Loans and REO Properties as are specifically provided for herein; provided, further, however, that the Master Servicer shall not be liable for its failure to comply with such duties insofar as such failure results from a failure by the Special Servicer to provide sufficient information to the Master Servicer to comply with such duties or failure by the Special Servicer to otherwise comply with its obligations hereunder. All references herein to the respective duties of the Master Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.21. (b) Subject to Section 3.01(a)) and Section 6.11, the Master Servicer and the Special Servicer each shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, each of the Master Servicer and the Special Servicer, in its own name, with respect to each of the Mortgage Loans and Companion Loans it is obligated to service hereunder, is hereby authorized and empowered by the Trustee and, pursuant to the Intercreditor Agreements, the Companion Holders, to execute and deliver, on behalf of the ~~Certificateholders and~~ Certificateholders, the ~~Trustee~~ Trustee, the Companion Holders or any of them: , (i) any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien created by any Mortgage or other security document in the related Mortgage File on the related Mortgaged Property and related collateral; (ii) in accordance with the Servicing Standard and subject to ~~Sections 3.08~~ Section 3.20 and ~~3.20~~Section 6.11, any and all modifications, waivers, amendments or consents to or with respect to any documents contained in the related Mortgage File; ~~and~~ (iii) any and all instruments of satisfaction or cancellation, or of partial or full ~~release~~ release, discharge, or ~~discharge~~assignment, and all other comparable instruments; and (iv) pledge agreements and other defeasance documents in connection with a defeasance contemplated pursuant to Section 3.20(h). Subject to Section 3.10, the Trustee shall, at the written request of ~~a Servicing Officer of~~ the Master Servicer or the Special Servicer, ~~furnish, or cause to be so furnished, to the Master Servicer and the Special Servicer, as the case may be,~~ promptly execute any limited powers of attorney and other documents furnished by the Master Servicer or the Special Servicer that are necessary or appropriate to enable them to carry out their servicing and administrative duties hereunder; provided, however, that the Trustee shall not be held liable for any misuse of any such power of attorney by the Master Servicer or the Special Servicer. Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall without the Trustee's written consent: (i) initiate any action, suit or proceeding solely under the Trustee's name without indicating the Master Servicer's or Special Servicer's as applicable, representative capacity or (ii) take any action with the intent to cause, or which actually does cause, the Trustee to be registered to do business in any state. (c) The relationship of each of the Master Servicer and the Special Servicer to the Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint ~~venturer~~venture, partner or agent. Unless the same Person acts as both Master Servicer and Special Servicer, the Master Servicer shall not be responsible for the actions of or failure to act by the Special Servicer and the Special Servicer shall not be responsible for the actions of or the failure to act by the Master Servicer. (d) In Notwithstanding anything herein to the contrary, in no event ~~that any two or more Mortgage Loans are cross-collateralized with each other~~shall the Master Servicer, the ~~Master Servicer~~ Trustee or ~~Special Servicer,~~ the Fiscal Agent make a Servicing Advance with respect to any Companion Loan to the extent the related AB Mortgage Loan has been paid in full or is no longer included in the Trust Fund. (e) Servicing and administration of each Companion Loan shall continue hereunder for so long as ~~applicable,~~ the corresponding AB Mortgage Loan or any related REO Property is part of the Trust Fund or for such longer period as any amounts payable by the related Companion Holder to or for the benefit of the Trust or any party hereto in accordance with the ~~terms of this~~ related Intercreditor Agreement, shall service and administer such Mortgage Loans as a single Mortgage Loan as and when it deems necessary and appropriate, consistent with the Servicing Standard. If any Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other Mortgage Loan that is cross-collateralized with it shall also become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and until all Servicing Transfer Events in respect of each other Mortgage Loan that is cross-collateralized with it, are remediated or otherwise addressed as contemplated in the definition of "Specially Serviced Mortgage Loan".

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mort Inv Inc Com MRT Pas THR Cert Ser 2002 Mw1)

Common use of Administration of the Mortgage Loans Clause in Contracts