Appointment of Special Servicer; Asset Status Reports. (a) LNR Partners, LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans and each Serviced Loan Combination (other than Outside Serviced Mortgage Loans). (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Loan Combination. Each Asset Status Report shall be delivered in electronic format to the Operating Advisor (subject to Section 3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the related Directing Holder if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. If any applicable Directing Holder does not disapprove an Asset Status Report in writing within 10 Business Days of receiving such Asset Status Report, then such Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If the applicable Directing Holder disapproves such Asset Status Report within 10 Business Days of receipt and the Special Servicer has not made the affirmative determination contemplated below, the Special Servicer shall revise such Asset Status Report and deliver to the Operating Advisor (subject to Section 3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. The Special Servicer shall revise such Asset Status Report as described above until the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved) shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this Section 3.21(b). If the related Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the related Directing Holder, provided such action does not violate the Servicing Standard (or, if such action would violate the Servicing Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan Holder(s), or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and any related Serviced Companion Loan Holder(s) (if applicable) and the Special Servicer has made a reasonable effort to contact the related Directing Holder (during the period that such Directing Holder has approval rights); provided that the foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan), the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 Business Days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, , with respect to a Serviced Loan Combination, at all times if and to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. Furthermore, the Special Servicer shall also consult on a non-binding basis with any other applicable Consulting Parties in connection with each related Asset Status Report prior to finalizing and executing such Asset Status Report and each such other Consulting Party shall be permitted to propose alternative courses of action within 10 Business Days of receipt of each Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan). The Special Servicer shall consider any such proposals from each applicable Consulting Party and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party. In the event that any applicable Consulting Party does not propose alternative courses of action within 10 Business Days after receipt of such Asset Status Report, the Special Servicer shall (subject to the approval rights of any applicable Directing Holder) implement the Asset Status Report as proposed by the Special Servicer. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any Certificate Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the summary of the Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event, the Special Servicer shall deliver to the Operating Advisor only each related Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the related Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this Agreement or the REMIC Provisions, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) or any party to this Agreement or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 8 contracts

Samples: Pooling and Servicing Agreement (Bank 2020-Bnk26), Pooling and Servicing Agreement (Benchmark 2020-B16 Mortgage Trust), Pooling and Servicing Agreement (Bank 2019-Bnk24)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners,~~ C-III Asset Management LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans (other than the Outside Serviced Mortgage Loans) and each Serviced Loan ~~Combination (other than Outside Serviced Mortgage Loans)~~Combination. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Loan Combination. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ but only after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only prior to the occurrence and ~~any applicable Consulting Parties~~ continuance of a Consultation Termination Event and only if the related Specially Serviced Loan is not an Excluded Mortgage Loan), the Certificate Administrator, the related Serviced Companion Loan Holder (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the related Directing Holder if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. If any ~~applicable Directing~~ related Outside Controlling Note Holder (if a Serviced Outside Controlled Loan Combination is involved) or the Controlling Class Representative (if any other Serviced Loan(s) (other than any Excluded Mortgage Loan) are involved and a Control Termination Event does not exist), as applicable, does not disapprove an Asset Status Report in writing within 10 Business Days of receiving such Asset Status Report, then ~~such~~ the related Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If the ~~applicable~~ related Directing Holder disapproves such Asset Status Report within 10 Business Days of receipt (and, if the Controlling Class Representative is the related Directing Holder, a Control Termination Event does not exist and such Asset Status Report does not relate to an Excluded Mortgage Loan) and the Special Servicer has not made the affirmative determination contemplated below, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only prior to the occurrence and continuance of a Consultation Termination Event and only if such Asset Status Report does not relate to an Excluded Mortgage Loan), the Certificate Administrator, any ~~applicable Consulting Party~~ related Serviced Companion Loan Holder(s) (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. The Special Servicer shall revise such Asset Status Report as described above until the related Directing Holder shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved) ~~shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report~~ or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion ~~Loan(s)~~Loan)). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If the related Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved), provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan Holder(s), or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer ~~reasonably~~ determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and any related Serviced Companion Loan Holder(s) (if applicable) and the Special Servicer has made a reasonable effort to contact the related Directing Holder (during the period that such Directing Holder has approval rights)~~; provided that the~~ . The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or ~~M-1F~~M-1E), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan), the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 Business Days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, , with respect to a Serviced Loan Combination, at all times if and to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. Furthermore, the Special Servicer shall also consult on a non-binding basis with any other applicable Consulting Parties in connection with each related Asset Status Report prior to finalizing and executing such Asset Status Report and each such other Consulting Party shall be permitted to propose alternative courses of action within 10 Business Days of receipt of each Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan). The Special Servicer shall consider any such proposals from each applicable Consulting Party and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party. In the event that any applicable Consulting Party does not propose alternative courses of action within 10 Business Days after receipt of such Asset Status Report, the Special Servicer shall (subject to the approval rights of any applicable Directing Holder) implement the Asset Status Report as proposed by the Special Servicer. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any Certificate Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the summary of the Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event, the Special Servicer shall deliver to the Operating Advisor only each related Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the related Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this Agreement or the REMIC Provisions, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) or any party to this Agreement or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 7 contracts

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-P4), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2016-C34), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-Gc37)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Midland Loan Services, ~~LLC~~ a Division of PNC Bank, National Association is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans (other than the Outside Serviced Trust Loans) and each Serviced Loan ~~Combination (other than Outside Serviced Mortgage Loans)~~Combination. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Loan Combination. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~an applicable Control Termination Event), ~~any~~ the related Directing Holder (prior to the occurrence and continuance of an applicable ~~Directing Holder~~Consultation Termination Event), ~~and any applicable Consulting Parties~~ the Certificate Administrator, the related Serviced Companion Loan Holder (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the related Directing Holder if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any~~ For so long as an applicable ~~Directing Holder does~~ Control Termination Event has not ~~disapprove an Asset Status Report in writing~~ occurred and is not continuing, if within 10 Business Days of receiving an Asset Status Report, the related Directing Holder does not disapprove such Asset Status ~~Report~~Report in writing, then such Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the occurrence and continuance of any applicable Control Termination Event, the related Directing Holder disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~an applicable Control Termination Event), ~~any~~ related Directing Holder (prior to the occurrence and continuance of an applicable ~~Directing Holder~~Consultation Termination Event), the Certificate Administrator, any ~~applicable Consulting Party~~ related Serviced Companion Loan Holder(s) (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any applicable Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the related Directing Holder ~~(but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion ~~Loan(s)~~Loan)). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as an applicable Control Termination Event has not occurred and is not continuing, if the related Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the related Directing Holder, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan Holder(s), or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and any related Serviced Companion Loan Holder(s) (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of an applicable Control Termination Event, to contact the related Directing ~~Holder (during the period that such Directing Holder has approval rights); provided that the~~ Holder. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a an applicable Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of an applicable Control Termination Event, but prior to the occurrence and continuance of an applicable Consultation Termination Event, the Special Servicer shall also consult on a non-binding basis with the related Directing Holder in connection with each related Asset Status Report prior to finalizing and executing such Asset Status Report and the related Directing Holder shall be permitted to propose alternative courses of action within 10 days of receipt of each Asset Status Report. Furthermore, at all times, with respect to a Serviced Loan Combination, ~~at all times if and to~~ the ~~extent so provided in the related Co-Lender Agreement, any~~ related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status ~~Report within 10 Business Days of receiving such Asset Status~~ Report; provided that, in the case of a Serviced Outside Controlled Pari Passu Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. Furthermore, the Special Servicer shall also consult on a non-binding basis with any other applicable Consulting Parties in connection with each related Asset Status Report prior to finalizing and executing such Asset Status Report and each such other Consulting Party shall be permitted to propose alternative courses of action within 10 Business Days of receipt of each Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan). The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ (a) the Operating Advisor (b) the related Directing Holder or (c) with respect to any Serviced Companion Loan, the related Serviced Companion Loan Holder (or its Companion Loan Holder Representative), as applicable, and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor, the Controlling Class Representative, the related Serviced Companion Loan Holder (or its Companion Loan Holder Representative), or the related Outside Controlling Note Holder, as applicable, does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of an applicable Consultation Termination Event, the related Directing Holder shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of an applicable Control Termination Event, the related Directing Holder shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, prior to the Eastmont Town Center Controlling Note Securitization Date, no request for approval of the Controlling Class Representative shall be made on any matter related to the Eastmont Town Center Loan Combination, nor shall the Operating Advisor have the right to consult on any matter related to the Eastmont Town Center Loan Combination, nor shall the Controlling Class Representative have the right to consent on any matter related to the Eastmont Town Center Loan Combination, except that the Controlling Class Representative (prior to the occurrence and continuance of a CCR Consultation Termination Event) shall have the rights set forth in the applicable Co-Lender Agreement. With respect to the Eastmont Town Center Loan Combination and any related REO Property, prior to the Eastmont Town Center Controlling Note Securitization Date, the Outside Controlling Note Holder with respect to the Eastmont Town Center Loan Combination shall exercise all approval rights regarding any Asset Status Report in respect of the Eastmont Town Center Loan Combination or REO Property set forth in the second paragraph of this Section 3.21(b) without regard to the occurrence of any Control Termination Event or Consultation Termination Event. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a an applicable Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each related Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the related Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, ~~any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement,~~ expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor. (g) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for the purposes of this clause (g), “Applicable Laws”), the Special Servicer may be required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Special Servicer. Accordingly, each of the parties hereto agrees to provide to the Special Servicer, upon its reasonable request, from time to time such identifying information and documentation as may be readily available to such party in order to enable the Special Servicer to comply with Applicable Laws; provided that the Special Servicer shall be responsible for all reasonable actual out-of-pocket expenses incurred by such party in connection therewith.

Appears in 6 contracts

Samples: Pooling and Servicing Agreement (Benchmark 2021-B23 Mortgage Trust), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2015-Gc32), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2015-Gc29)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Xxxxx Fargo Bank, ~~LLC~~ National Association is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans (other than the Outside Serviced Mortgage Loans) and each Serviced Loan ~~Combination (other than Outside Serviced Mortgage Loans)~~Combination. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Loan Combination. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ but only after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only prior to the occurrence and ~~any applicable Consulting Parties~~ continuance of a Consultation Termination Event and only if the related Specially Serviced Loan is not an Excluded Mortgage Loan), the Certificate Administrator, the related Serviced Companion Loan Holder (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the related Directing Holder if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. If any ~~applicable Directing~~ related Outside Controlling Note Holder (if a Serviced Outside Controlled Loan Combination is involved) or the Controlling Class Representative (if any other Serviced Loan(s) (other than any Excluded Mortgage Loan) are involved and a Control Termination Event does not exist), as applicable, does not disapprove an Asset Status Report in writing within 10 Business Days of receiving such Asset Status Report, then ~~such~~ the related Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If the ~~applicable~~ related Directing Holder disapproves such Asset Status Report within 10 Business Days of receipt (and, if the Controlling Class Representative is the related Directing Holder, a Control Termination Event does not exist and such Asset Status Report does not relate to an Excluded Mortgage Loan) and the Special Servicer has not made the affirmative determination contemplated below, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only prior to the occurrence and continuance of a Consultation Termination Event and only if such Asset Status Report does not relate to an Excluded Mortgage Loan), the Certificate Administrator, any ~~applicable Consulting Party~~ related Serviced Companion Loan Holder(s) (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. The Special Servicer shall revise such Asset Status Report as described above until the related Directing Holder shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved) ~~shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report~~ or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion ~~Loan(s)~~Loan)). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If the related Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved), provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan Holder(s), or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and any related Serviced Companion Loan Holder(s) (if applicable) and the Special Servicer has made a reasonable effort to contact the related Directing Holder (during the period that such Directing Holder has approval rights)~~; provided that the~~ . The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or ~~M-1F~~M-1D), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, ~~, with respect to a Serviced Loan Combination, at all times if and to~~ after the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. Furthermore, the Special Servicer shall also consult on a non-binding basis with any other applicable Consulting Parties in connection with each related Asset Status Report prior to finalizing and executing such Asset Status Report and each such other Consulting Party shall be permitted to propose alternative courses of action within 10 Business Days of receipt of each Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan). The Special Servicer shall consider any such proposals from each applicable Consulting Party and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party. In the event that any applicable Consulting Party does not propose alternative courses of action within 10 Business Days after receipt of such Asset Status Report, the Special Servicer shall (subject to the approval rights of any applicable Directing Holder) implement the Asset Status Report as proposed by the Special Servicer. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any Certificate Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the summary of the Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event, the Special Servicer shall deliver to the Operating Advisor only each related Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the related Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this Agreement or the REMIC Provisions, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) or any party to this Agreement or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.occurrence

Appears in 6 contracts

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-P4), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-C1), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-Gc37)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners,~~ C-III Asset Management LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans (other than the Outside Serviced Mortgage Loans) and each Serviced Loan ~~Combination (other than Outside Serviced Mortgage Loans)~~Combination. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Loan Combination. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ but only after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only prior to the occurrence and ~~any applicable Consulting Parties~~ continuance of a Consultation Termination Event and only if the related Specially Serviced Loan is not an Excluded Mortgage Loan), the related Serviced Companion Loan Holder (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the related Directing Holder if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. If any ~~applicable Directing~~ related Outside Controlling Note Holder (if a Serviced Outside Controlled Loan Combination is involved) or the Controlling Class Representative (if any other Serviced Loan(s), except for Excluded Mortgage Loans, are involved and a Control Termination Event does not exist), as applicable, does not disapprove an Asset Status Report in writing within 10 Business Days of receiving such Asset Status Report, then ~~such~~ the related Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If the ~~applicable~~ related Directing Holder disapproves such Asset Status Report within 10 Business Days of receipt (and, if the Controlling Class Representative is the related Directing Holder, a Control Termination Event does not exist and such Asset Status Report does not relate to an Excluded Mortgage Loan) and the Special Servicer has not made the affirmative determination contemplated below, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only prior to the occurrence and continuance of a Consultation Termination Event and only if such Asset Status Report does not relate to an Excluded Mortgage Loan), the Certificate Administrator, any ~~applicable Consulting Party~~ related Serviced Companion Loan Holder(s) (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. The Special Servicer shall revise such Asset Status Report as described above until the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved) shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion ~~Loan(s)~~Loan)). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If the related Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved), provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan Holder(s), or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and any related Serviced Companion Loan Holder(s) (if applicable) and the Special Servicer has made a reasonable effort to contact the related Directing Holder (during the period that such Directing Holder has approval rights)~~; provided that the~~ . The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or ~~M-1F~~M-1E), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 Business Days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, ~~, with respect to a Serviced Loan Combination, at all times if~~ after the occurrence and to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. Furthermore, the Special Servicer shall also consult on a non-binding basis with any other applicable Consulting Parties in connection with each related Asset Status Report prior to finalizing and executing such Asset Status Report and each such other Consulting Party shall be permitted to propose alternative courses of action within 10 Business Days of receipt of each Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan). The Special Servicer shall consider any such proposals from each applicable Consulting Party and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party. In the event that any applicable Consulting Party does not propose alternative courses of action within 10 Business Days after receipt of such Asset Status Report, the Special Servicer shall (subject to the approval rights of any applicable Directing Holder) implement the Asset Status Report as proposed by the Special Servicer. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a ~~Servicing Transfer~~ Control Termination Event, ~~the Special Servicer shall have the authority~~ but prior to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any Certificate Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the summary of the Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event, the Special Servicer shall deliver to the Operating Advisor only each related Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the related Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this Agreement or the REMIC Provisions, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) or any party to this Agreement or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.the

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2016-P5), Pooling and Servicing Agreement (JPMCC Commercial Mortgage Securities Trust 2016-Jp3), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2016-Lc24)

Appointment of Special Servicer; Asset Status Reports. (a) LNR Partners, LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans and ~~each Serviced Loan Combination (other than Outside Serviced Mortgage~~ the Whole Loans). (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or ~~Serviced Loan Combination~~Whole Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holder, and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or ~~Serviced Loan Combination~~Whole Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holders and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related ~~Serviced~~ Companion Loan ~~Holder(s)~~ Holders (as a collective whole as if such Certificateholders, and/or ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, if applicable, constitute a single ~~lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))~~lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced~~ the Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders of Certificates that were previously included in the Control Eligible ~~Classes~~Certificates), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, with respect to a Whole Loan, the related Companion Loan Holder (or its Companion Loan Holder Representative) shall, at all times, be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report as set forth in Section 3.29(d) of this Agreement. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any ~~Serviced~~ Companion Loan Holder, any Companion Loan Holder Representative or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this Agreement or ~~the REMIC Provisions~~any Co-Lender Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or ~~Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement~~Whole Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor ~~trust for federal income tax purposes~~trust, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc19), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc18), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc18)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners,~~ 3650 REIT Loan Servicing LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans ~~and each Serviced Loan Combination~~ (other than the Outside Serviced Mortgage Loans)) and each Serviced Whole Loan. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan. Each Asset Status Report shall be delivered in electronic format to the Operating Advisor (subject to Section 3.21(e) of this Agreement), any applicable Directing Holder, ~~and~~ any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the related Directing Holder if they are the same entity. Prior to the occurrence and continuance of an Operating Advisor Consultation Trigger Event, the Special Servicer shall deliver to the Operating Advisor each Final Asset Status Report promptly after such Final Asset Status Report has been approved or deemed approved. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via ~~email~~ electronic mail and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the applicable Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Whole Loan ~~Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; (vii) information regarding any direct or indirect conflict of interest in such proposed or taken actions; and (~~vii~~viii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. If any applicable Directing Holder does not disapprove an Asset Status Report in writing within 10 Business Days of receiving such Asset Status Report, then such Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If the applicable Directing Holder disapproves such Asset Status Report within 10 Business Days of receipt and the Special Servicer has not made the affirmative determination contemplated below, the Special Servicer shall revise such Asset Status Report and deliver to the Operating Advisor (subject to Section 3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting ~~Party~~ Party, any related Serviced Companion Loan Holder(s) (in the case of a Serviced Whole Loan) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. The Special Servicer shall revise such Asset Status Report as described above until the ~~related~~ applicable Directing Holder ~~(but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the ~~Certificateholders~~ Trust Certificateholders, the Uncertificated Interest Owners and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Trust Certificateholders, the Uncertificated Interest Owners and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB ~~Loan Combination~~Whole Loan, taking into account the subordinate nature of the related Subordinate Companion Loan(s))). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this Section 3.21(b). If the ~~related~~ applicable Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by ~~the related~~ such Directing Holder, provided such action does not violate the Servicing Standard (or, if such action would violate the Servicing Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the ~~Certificateholders~~ Trust Certificateholders, the Uncertificated Interest Owners and any related Serviced Companion Loan Holder(s), or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the ~~Certificateholders~~ Trust Certificateholders, the Uncertificated Interest Owners and any related Serviced Companion Loan Holder(s) (if applicable) and the Special Servicer has made a reasonable effort to contact the ~~related~~ applicable Directing Holder (during the period that such Directing Holder has approval rights); provided that the foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent ~~applicable~~ Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan), the The Special Servicer shall consult on a non-binding basis with ~~the Operating Advisor~~ any applicable Consulting Party (other than any Risk Retention Consultation Party) in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and ~~the Operating Advisor~~ any applicable Consulting Party (other than any Risk Retention Consultation Party) shall ~~propose, by written notice,~~ be permitted to propose alternative courses of action and provide other feedback within 10 Business Days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, , with respect to a Serviced Loan Combination, at all times if and to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. Furthermore, the Special Servicer shall also consult on a non-binding basis with any other applicable Consulting Parties in connection with each related Asset Status Report prior to finalizing and executing such Asset Status Report and each such other Consulting Party shall be permitted to propose alternative courses of action within 10 Business Days of receipt of each Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan). The Special Servicer shall consider any such proposals and other feedback from ~~each~~ any such applicable Consulting Party and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party. In the event ~~that any~~ no applicable Consulting Party ~~does not propose~~ proposes alternative courses of action within 10 Business Days after receipt of such Asset Status Report, the Special Servicer shall (subject to the approval rights of any applicable Directing Holder) implement the Asset Status Report as proposed by the Special Servicer~~. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the~~ . The Special Servicer ~~shall have~~ may choose to revise the ~~authority to meet with the related Mortgagors and take any actions consistent~~ Asset Status Report as it deems reasonably necessary in accordance with the Servicing Standard to take into account any input and/or recommendations of any applicable Consulting Party, but is under no obligation to follow any particular recommendation of any applicable Consulting Party. From and after the ~~most recent~~ Closing Date, the Controlling Class Representative shall have no right to receive any Asset Status Report ~~for the~~ related Mortgage Loan. (d) Upon request of any Certificateholder (or any Certificate Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to ~~the address specified in such request a copy of the summary of the Final Asset Status Report for each Specially Serviced Loan; provided that~~ an Excluded ~~Controlling Class Holder shall not be provided with any Final Asset Status Report (~~Mortgage Loan or ~~copy thereof~~otherwise to consent or object thereto under this Section 3.21(b) or consult with the ~~summary of any Final Asset Status Report (or copy thereof)~~ Special Servicer with respect to any ~~Excluded Controlling Class Mortgage Loan~~ matter set forth therein. Notwithstanding anything herein to the contrary, a Risk Retention Consultation Party shall have no right to receive any Asset Status Report with respect to ~~which such~~ any related Excluded RRCP Mortgage Loan. With respect to a Servicing Shift Whole Loan that is a Serviced Outside Controlled Whole Loan, prior to the related Servicing Shift Date, no request for approval of the Controlling Class ~~Holder is a Borrower Party.~~ Representative shall be made on any matter related to such Servicing Shift Whole Loan, nor shall the Controlling Class Representative have the right to approve Asset Status Reports related to such Servicing Shift Whole Loan, except that the Controlling Class Representative (~~e) Prior~~ prior to the occurrence and continuance of a Consultation Termination Event and only if the related Servicing Shift Mortgage Loan is not an Excluded Mortgage Loan) may exercise the consultation rights, if any, of the holder of the related Servicing Shift Mortgage Loan with respect to Asset Status Reports, Major Decisions and any proposed sale of such Servicing Shift Mortgage Loan set forth in the applicable Co-Lender Agreement. With respect to a Servicing Shift Whole Loan that is a Serviced Outside Controlled Whole Loan and any related REO Property, prior to the related Servicing Shift Date, the Outside Controlling Note Holder with respect to such Servicing Shift Whole Loan shall exercise all approval rights regarding any Asset Status Report in respect of such Servicing Shift Whole Loan or REO Property set forth in the second paragraph of this Section 3.21(b) without regard to the occurrence of any Control Termination Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event, the Special Servicer shall deliver to the Operating Advisor only each related Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the related Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this Agreement or the REMIC Provisions, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) or any party to this Agreement or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.Consultation

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (BMO 2023-C7 Mortgage Trust), Pooling and Servicing Agreement (BBCMS Mortgage Trust 2024-C30), Pooling and Servicing Agreement (BMO 2024-C10 Mortgage Trust)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners,~~ C-III Asset Management LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans ~~and each Serviced Loan Combination~~ (other than ~~Outside~~ any Non-Serviced Mortgage Loan) and the Serviced Whole Loans). (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision or, if applicable, Whole Loan Major Decision (or making a determination not to take action with respect to a Major Decision or, if applicable, Whole Loan Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ with respect to the Soho-Tribeca Grand Hotel Portfolio Whole Loan, the Soho-Tribeca Grand Hotel Portfolio Directing Holder, with respect to the Westfield Wheaton Whole Loan, the Westfield Wheaton Directing Holder, the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event and other than in respect of any ~~applicable Consulting Parties~~ Excluded Loan then subject to an Exclusion Period (as to which any Asset Status Report is Excluded Information)), the Certificate Administrator, the related Serviced Companion Loan Holder and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, that the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same ~~entity. The Special Servicer shall notify the Operating Advisor~~ entity or affiliates of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. If any applicable Directing Holder does not disapprove an Asset Status Report in writing within 10 Business Days of receiving such Asset Status Report, then such Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If the applicable Directing Holder disapproves such Asset Status Report within 10 Business Days of receipt and the Special Servicer has not made the affirmative determination contemplated below, the Special Servicer shall revise such Asset Status Report and deliver to the Operating Advisor (subject to Section 3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. The Special Servicer shall revise such Asset Status Report as described above until the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved) shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this Section 3.21(b). If the related Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the related Directing Holder, provided such action does not violate the Servicing Standard (or, if such action would violate the Servicing Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan Holder(s), or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and any related Serviced Companion Loan Holder(s) (if applicable) and the Special Servicer has made a reasonable effort to contact the related Directing Holder (during the period that such Directing Holder has approval rights); provided that the foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan), the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 Business Days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, , with respect to a Serviced Loan Combination, at all times if and to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. Furthermore, the Special Servicer shall also consult on a non-binding basis with any other applicable Consulting Parties in connection with each related Asset Status Report prior to finalizing and executing such Asset Status Report and each such other Consulting Party shall be permitted to propose alternative courses of action within 10 Business Days of receipt of each Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan). The Special Servicer shall consider any such proposals from each applicable Consulting Party and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party. In the event that any applicable Consulting Party does not propose alternative courses of action within 10 Business Days after receipt of such Asset Status Report, the Special Servicer shall (subject to the approval rights of any applicable Directing Holder) implement the Asset Status Report as proposed by the Special Servicer. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any Certificate Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the summary of the Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event, the Special Servicer shall deliver to the Operating Advisor only each related Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the related Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this Agreement or the REMIC Provisions, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) or any party to this Agreement or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.each

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (CSAIL 2015-C3 Commercial Mortgage Trust), Pooling and Servicing Agreement (CSAIL 2015-C2 Commercial Mortgage Trust), Pooling and Servicing Agreement (CSAIL 2015-C1 Commercial Mortgage Trust)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners,~~ CWCapital Asset Management LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans ~~and each Serviced Loan Combination~~ (other than ~~Outside~~ the Non-Serviced Mortgage Loans)) and the Serviced Whole Loans. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holder, and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Whole Loan ~~Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holders and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related ~~Serviced~~ Companion Loan ~~Holder(s)~~ Holders (as a collective whole as if such Certificateholders, and/or ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, if applicable, constitute a single ~~lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))~~lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced~~ the Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders of Certificates that were previously included in the Control Eligible ~~Classes~~Certificates), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, with respect to a Pari Passu Serviced Whole Loan, the related Companion Loan Holder (or its Companion Loan Holder Representative) shall, at all times, be entitled to consult on a non-binding basis with the Controlling Class Representative and propose alternative courses of action in respect of any Asset Status Report as set forth in Section 3.28(d) of this Agreement. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any ~~Serviced~~ Companion Loan Holder, any Companion Loan Holder Representative or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this Agreement or ~~the REMIC Provisions~~any Co-Lender Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced ~~Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement~~Whole Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor ~~trust for federal income tax purposes~~trust, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2017-H1), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc23), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc22)

Appointment of Special Servicer; Asset Status Reports. (a) LNR Partners, LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans (other than the Outside Serviced Trust Loans) and each Serviced Loan ~~Combination (other than Outside Serviced Mortgage Loans)~~Combination. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Loan Combination. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ but only after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only prior to the occurrence and ~~any applicable Consulting Parties~~ continuance of a Consultation Termination Event and only for so long as the related Specially Serviced Loan is not an Excluded Mortgage Loan), the Certificate Administrator, the related Serviced Companion Loan Holder (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the related Directing Holder if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. If any ~~applicable Directing~~ related Outside Controlling Note Holder (if a Serviced Outside Controlled Loan Combination is involved) or the Controlling Class Representative (if any other Serviced Loan(s) (other than any Excluded Mortgage Loan) are involved and a Control Termination Event does not exist), as applicable, does not disapprove an Asset Status Report in writing within 10 Business Days of receiving such Asset Status Report, then ~~such~~ the related Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If the ~~applicable~~ related Directing Holder disapproves such Asset Status Report within 10 Business Days of receipt ~~and~~ (and, if the ~~Special Servicer has~~ Controlling Class Representative is the related Directing Holder, a Control Termination Event does not ~~made the affirmative determination contemplated below~~exist), the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, any ~~applicable Consulting Party~~ related Serviced Companion Loan Holder(s) (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. The Special Servicer shall revise such Asset Status Report as described above until the related Directing Holder shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not ~~exist and only if an Excluded Mortgage Loan is not involved~~exist) ~~shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report~~ or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion ~~Loan(s)~~Loan)). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If the related Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist), provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan Holder(s), or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and any related Serviced Companion Loan Holder(s) (if applicable) and the Special Servicer has made a reasonable effort to contact the related Directing Holder (during the period that such Directing Holder has approval rights)~~; provided that the~~ . The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded ~~Information~~Controlling Class Mortgage Loan” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult on a non-binding basis with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each related Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan) prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan). ~~The Special Servicer shall consider any such proposals from each applicable Consulting Party and determine whether any changes to its proposed Asset Status Report should be made~~Furthermore, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party. In the event that any applicable Consulting Party does not propose alternative courses of action within 10 Business Days after receipt of such Asset Status Report, the Special Servicer shall (subject to the approval rights of any applicable Directing Holder) implement the Asset Status Report as proposed by the Special Servicer. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any Certificate Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the summary of the Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to ~~any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is~~ a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event, the Special Servicer shall deliver to the Operating Advisor only each related Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the related Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this Agreement or the REMIC Provisions, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) or any party to this Agreement or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.at all

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs3), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2015-Gc33), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2015-P1)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Midland Loan Services, ~~LLC~~ a Division of PNC Bank, National Association is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans and each Serviced Loan Combination (other than the Outside Serviced Mortgage Loans). (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Loan Combination. Each Asset Status Report shall be delivered in electronic format to the Operating Advisor (subject to Section 3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the related Directing Holder if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be ~~via email and may be~~ satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. If any applicable Directing Holder does not disapprove an Asset Status Report in writing within 10 Business Days of receiving such Asset Status Report, then such Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If the applicable Directing Holder disapproves such Asset Status Report within 10 Business Days of receipt and the Special Servicer has not made the affirmative determination contemplated below, the Special Servicer shall revise such Asset Status Report and deliver to the Operating Advisor (subject to Section 3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. The Special Servicer shall revise such Asset Status Report as described above until the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved) shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this Section 3.21(b). If the related Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the related Directing Holder, provided such action does not violate the Servicing Standard (or, if such action would violate the Servicing Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan Holder(s), or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and any related Serviced Companion Loan Holder(s) (if applicable) and the Special Servicer has made a reasonable effort to contact the related Directing Holder (during the period that such Directing Holder has approval rights); provided that the foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan), the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 Business Days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, , with respect to a Serviced Loan Combination, at all times if and to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. Furthermore, the Special Servicer shall also consult on a non-binding basis with any other applicable Consulting Parties in connection with each related Asset Status Report prior to finalizing and executing such Asset Status Report and each such other Consulting Party shall be permitted to propose alternative courses of action within 10 Business Days of receipt of each Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan). The Special Servicer shall consider any such proposals from each applicable Consulting Party and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party. In the event that any applicable Consulting Party does not propose alternative courses of action within 10 Business Days after receipt of such Asset Status Report, the Special Servicer shall (subject to the approval rights of any applicable Directing Holder) implement the Asset Status Report as proposed by the Special Servicer. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any Certificate Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the summary of the Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event, the Special Servicer shall deliver to the Operating Advisor only each related Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the related Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this Agreement or the REMIC Provisions, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) or any party to this Agreement or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 3 contracts

Samples: Agreement Between Noteholders (Benchmark 2020-B20 Mortgage Trust), Agreement Between Noteholders (Benchmark 2020-B19 Mortgage Trust), Agreement Between Noteholders (DBJPM 2020-C9 Mortgage Trust)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Rialto Capital Advisors, LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans ~~and each Serviced Loan Combination~~ (other than ~~Outside~~ a Non-Serviced ~~Mortgage Loans~~Trust Loan). (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage ~~Loan or Serviced Loan Combination~~Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan ~~or Serviced Loan Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan ~~or Serviced Loan Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage ~~Loan or Serviced Loan Combination~~Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan ~~or Serviced Loan Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holders and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the ~~Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such~~ Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the ~~Certificateholders and any related Serviced Companion Loan Holder(s)~~Certificateholders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced Companion Loan Holder(s) (if applicable) and~~ the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, ~~any Serviced Companion Loan Holder, any Companion Loan Holder Representative~~ or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage ~~Loan or Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement~~Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a ~~REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes~~REMIC, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2012-Gcj9), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2012-Gcj9)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Torchlight Loan Services, ~~LLC~~ LLC, is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans and ~~each Serviced Loan Combination (other than Outside Serviced Mortgage Loans)~~the Whole Loan. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Mortgage Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or ~~Serviced Loan Combination~~the Whole Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the Companion Loan Holder (in the case of the Whole Loan) and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan ~~or Serviced Loan Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the ~~Mortgage~~ Loan ~~or Serviced Loan Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage ~~Loan or Serviced Loan Combination~~Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan ~~or Serviced Loan Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the Companion Loan Holder and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the ~~related Serviced~~ Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s)))Holder. The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced~~ the Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, for as long as a Companion Loan Holder is the “directing holder” (within the meaning of the related Intercreditor Agreement) for a Whole Loan, no request for approval of the Controlling Class Representative shall be made on any matter related to such Whole Loan, nor shall the Operating Advisor have the right to consult on any matter related to such Whole Loan, nor shall the Controlling Class Representative have the right to consent on any matter related to such Whole Loan, except that the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event) shall have the rights set forth in the applicable Intercreditor Agreement. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Mortgage Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, ~~any Serviced Companion~~ the Whole Loan ~~Holder, any Companion Loan~~ Directing Holder ~~Representative~~ or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or ~~Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement~~the Whole Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a ~~REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes~~REMIC, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2011-Gc5), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2011-Gc5)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Rialto Capital Advisors, LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans ~~and each Serviced Loan Combination~~ (other than ~~Outside~~ any Non-Serviced Mortgage Loan) and the Serviced Whole Loans). (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major ~~Decision)~~ Decision with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable Directing Holder~~the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), ~~and any applicable Consulting Parties~~ the Certificate Administrator, the related Serviced Companion Loan Holder and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, that the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder entity or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary affiliates of each ~~Final Asset Status Report to the Certificate Administrator~~other. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably ~~determinable~~determinable or applicable: (i) summary of the status of the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days (or, in the case of an Asset Status Report ~~in writing within 10~~ prepared prior to making a determination of an Acceptable Insurance Default, 20 Business ~~Days~~ Days) of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Mortgage Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days (or, in the case of ~~receipt and the Special Servicer has not made the affirmative~~ an Asset Status Report prepared prior to making a determination ~~contemplated below~~of an Acceptable Insurance Default, 20 Business Days) of receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable Directing Holder~~the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), ~~any applicable Consulting Party~~ the Certificate Administrator, the related Companion Loan Holders and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days (or, in the case of an Asset Status Report prepared prior to making a determination of an Acceptable Insurance Default, 20 Business Days) of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single ~~lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))~~lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and ~~not rejected~~ approved or deemed approved pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as ~~directed by~~ set forth in the ~~related Directing Holder,~~ most recently submitted Asset Status Report; provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period (or 20 Business Day period, if applicable) if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period (or 20 Business Day period, if applicable) would materially and adversely affect the interest of the Certificateholders and ~~any~~ the related Serviced Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders of Certificates that were previously included in the Control Eligible ~~Classes~~Certificates), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult on a non-binding basis with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, with respect to a Serviced Whole Loan, the related Serviced Companion Loan Holder (or its Companion Loan Holder Representative) shall, at all times contemplated by the related Co-Lender Agreement, be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report as set forth in Section 3.27(d) of this Agreement. The Special Servicer shall deliver (i) any Final Asset Status report to the 17g-5 Information Provider for posting on its Website, and (ii) a summary of the Final Asset Status Report (which such summary shall be prepared on a loan-by-loan basis) to the Certificate Administrator for posting on its website. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) ~~With respect to any Asset Status Report provided to~~ Notwithstanding the ~~Operating Advisor pursuant to this Section 3.21~~foregoing, neither the Master Servicer nor the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Master Servicer or the Special ~~Servicer~~ Servicer, as applicable, to violate any applicable law, be inconsistent with the Servicing ~~Standard~~Standard or any Co-Lender Agreement, require or cause the Master Servicer or the Special Servicer, as applicable, to violate provisions of this Agreement, require or cause the Special Servicer ~~to violate provisions of this Agreement~~ or ~~the REMIC Provisions, require or cause the Special~~ Master Servicer to violate the terms of any Co-Lender Agreement, any Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan, ~~any related Loan Documents, any related Co-Lender Agreement~~ or ~~any intercreditor agreement,~~ expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC for federal income tax purposes or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, or the imposition of a tax upon either Trust REMIC, or materially expand the scope of ~~any~~ the Master Servicer’s or the Special Servicer’s ’s, as applicable, responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, neither the Master Servicer nor the Special Servicer is under no any obligation to act upon any recommendation of the Operating Advisor.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (CSAIL 2015-C3 Commercial Mortgage Trust), Pooling and Servicing Agreement (CSAIL 2015-C2 Commercial Mortgage Trust)

Appointment of Special Servicer; Asset Status Reports. (a) LNR Partners, LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans ~~and each Serviced Loan Combination~~ (other than ~~Outside~~ the Non-Serviced Mortgage Loan) and the Serviced Whole Loans). (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision or, if applicable, Whole Loan Major Decision (or making a determination not to take action with respect to a Major Decision or, if applicable, Whole Loan Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holder, and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Whole Loan ~~Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holders and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related ~~Serviced~~ Companion Loan ~~Holder(s)~~ Holders (as a collective whole as if such Certificateholders, and/or ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, if applicable, constitute a single ~~lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))~~lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced~~ the Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders of Certificates that were previously included in the Control Eligible ~~Classes~~Certificates), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, with respect to a Pari Passu Serviced Whole Loan, the related Companion Loan Holder (or its Companion Loan Holder Representative) shall, at all times, be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report as set forth in Section 3.28(d) of this Agreement. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, for as long as a Subordinate Companion Loan Holder is the Whole Loan Directing Holder for the AB Whole Loan, no request for approval of the Controlling Class Representative shall be made on any matter related to such AB Whole Loan, nor shall the Operating Advisor have the right to consult on any matter related to such AB Whole Loan, nor shall the Controlling Class Representative have the right to consent on any matter related to such AB Whole Loan, except that the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event) shall have the rights set forth in the applicable Intercreditor Agreement. With respect to each AB Whole Loan and any related REO Property, for so long as the related Subordinate Companion Loan Holder is the applicable Whole Loan Directing Holder, the related Subordinate Companion Loan Holder shall exercise all approval rights regarding any Asset Status Report in respect of such AB Whole Loan or REO Property set forth in the second paragraph of this Section 3.21(b) without regard to the occurrence of any Control Termination Event or Consultation Termination Event. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any ~~Serviced~~ Companion Loan Holder, any Companion Loan Holder Representative or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this Agreement or ~~the REMIC Provisions~~any Co-Lender Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced ~~Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement~~Whole Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor ~~trust for federal income tax purposes~~trust, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc21), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc20)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Midland Loan Services, ~~LLC~~ a Division of PNC Bank, National Association is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans (other than the Outside Serviced Trust Loans) and each Serviced Loan ~~Combination (other than Outside Serviced Mortgage Loans)~~Combination. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Loan Combination. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ the Directing ~~Holder~~Holder (prior to the occurrence and continuance of a Consultation Termination Event), ~~and any applicable Consulting Parties~~ the Certificate Administrator, the related Serviced Companion Loan Holder (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related~~ Directing Holder if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Directing Holder does not disapprove such Asset Status Report in writing, then ~~such~~ the Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable~~ occurrence and continuance of any Control Termination Event, the Directing Holder disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ the Directing ~~Holder~~Holder (prior to the occurrence and continuance of a Consultation Termination Event), ~~any applicable Consulting Party~~ the Certificate Administrator, the related Serviced Companion Loan Holders (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related~~ Directing Holder ~~(but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan ~~Holder(s)~~ Holders (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan ~~Holder(s)~~Holders, if applicable, constitute a single ~~lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))~~lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related~~ Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related~~ Directing Holder, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related~~ the Serviced Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of a Control Termination Event, to contact the ~~related~~ Directing ~~Holder (during the period that such Directing Holder has approval rights); provided that the~~ Holder. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult on a non-binding basis with ~~any other applicable Consulting Parties~~ the Directing Holder in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Directing Holder shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Directing Holder and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Directing Holder does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Directing Holder shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Directing Holder shall have no right to consent to any Asset Status Report under this Section 3.21(b). (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the ~~related~~ Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, ~~any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement,~~ expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor. (g) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (for the purposes of this clause (g), “Applicable Laws”), the Special Servicer may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Special Servicer. Accordingly, each of the parties hereto agrees to provide to the Special Servicer, upon its reasonable request, from time to time such identifying information and documentation as may be readily available to such party in order to enable the Special Servicer to comply with Applicable Laws; provided that the Special Servicer shall be responsible for all reasonable actual out-of-pocket expenses incurred by such party in connection therewith.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc26), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc25)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Midland Loan Services, ~~LLC~~ a Division of PNC Bank, National Association is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans ~~and each Serviced Loan Combination~~ (other than the Outside Serviced ~~Mortgage~~ Trust Loans)) and the Serviced Loan Combinations. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Loan Combination. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable Directing Holder~~the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), ~~and any applicable Consulting Parties~~ the Certificate Administrator, the related Serviced Companion Loan Holder (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable Directing Holder~~the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), ~~any applicable Consulting Party~~ the Certificate Administrator, the related Serviced Companion Loan Holders (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan ~~Holder(s)~~ Holders (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan ~~Holder(s)~~Holders, if applicable, constitute a single ~~lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))~~lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related~~ the Serviced Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of a Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult on a non-binding basis with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, ~~any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement,~~ expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor. (g) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Laws”), the Special Servicer may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Special Servicer. Accordingly, each of the parties hereto agrees to provide to the Special Servicer, upon its reasonable request, from time to time such identifying information and documentation as may be readily available to such party in order to enable the Special Servicer to comply with Applicable Laws; provided that the Special Servicer shall be responsible for all reasonable actual out-of-pocket expenses incurred by such party in connection therewith.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc22), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc19)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Rialto Capital Advisors, LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage ~~Loans and each Serviced Loan Combination (other than Outside Serviced Mortgage~~ Loans). (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage ~~Loan or Serviced Loan Combination~~Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan ~~or Serviced Loan Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan ~~or Serviced Loan Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage ~~Loan or Serviced Loan Combination~~Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan ~~or Serviced Loan Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders ~~and, if applicable, the related Serviced Companion Loan Holder(s)~~ (as a collective whole as if such ~~Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute~~ Certificateholders constituted a single ~~lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))~~lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the ~~Certificateholders and any related Serviced Companion Loan Holder(s)~~Certificateholders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced Companion Loan Holder(s) (if applicable) and~~ the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating ~~Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative~~ Advisor or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage ~~Loan or Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement~~Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a ~~REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes~~REMIC, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj12), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj12)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Midland Loan Services, ~~LLC~~ a Division of PNC Bank, National Association is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans (other than the Outside Serviced Mortgage Loans) and each Serviced Loan ~~Combination (other than Outside Serviced Mortgage Loans)~~Combination. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Loan Combination. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (subject to Section 3.21(e) of this Agreement), ~~any applicable~~ the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only prior to the occurrence and ~~any applicable Consulting Parties~~ continuance of a Consultation Termination Event and only if the related Specially Serviced Loan is not an Excluded Mortgage Loan), the related Serviced Companion Loan Holder (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the related Directing Holder if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification ~~may be via email and~~ may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. If any ~~applicable Directing~~ related Outside Controlling Note Holder (if a Serviced Outside Controlled Loan Combination is involved) or the Controlling Class Representative (if any other Serviced Loan(s), except for Excluded Mortgage Loans, are involved and a Control Termination Event does not exist), as applicable, does not disapprove an Asset Status Report in writing within 10 Business Days of receiving such Asset Status Report, then ~~such~~ the related Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If the ~~applicable~~ related Directing Holder disapproves such Asset Status Report within 10 Business Days of receipt (and, if the Controlling Class Representative is the related Directing Holder, a Control Termination Event does not exist and such Asset Status Report does not relate to an Excluded Mortgage Loan) and the Special Servicer has not made the affirmative determination contemplated below, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (subject to Section 3.21(e) of this Agreement), ~~any applicable~~ the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only prior to the occurrence and continuance of a Consultation Termination Event and only if such Asset Status Report does not relate to an Excluded Mortgage Loan), any ~~applicable Consulting Party~~ related Serviced Companion Loan Holder(s) (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. The Special Servicer shall revise such Asset Status Report as described above until the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved) shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion ~~Loan(s)~~Loan)). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If the related Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the related Directing Holder (but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved), provided such action does not violate the Servicing Standard (or, if such action would violate the Servicing Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing ~~Standard and such Asset Status Report shall be deemed a Final Asset Status Report~~Standard). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan Holder(s), or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and any related Serviced Companion Loan Holder(s) (if applicable) and the Special Servicer has made a reasonable effort to contact the related Directing Holder (during the period that such Directing Holder has approval rights); provided that the foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent ~~applicable~~ Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of ~~a Control Termination Event (in the case of any Serviced Loan) or~~ an ~~000 Xxxxx Xxxxxx~~ Operating Advisor Consultation Trigger ~~Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 Business Days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence and continuance of a Consultation Termination Event, the Special Servicer shall also consult on a non-binding basis with the Controlling Class Representative in connection with each related Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan) prior to finalizing and executing such Asset Status Report and the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 Business Days of receipt of each Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan). Furthermore, with respect to a Serviced Loan Combination, at all times if and to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. Furthermore, the Special Servicer shall also consult on a non-binding basis with any other applicable Consulting Parties in connection with each related Asset Status Report prior to finalizing and executing such Asset Status Report and each such other Consulting Party shall be permitted to propose alternative courses of action within 10 Business Days of receipt of each Asset Status Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan). The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ (a) the Operating Advisor (during the continuance of an Operating Advisor Consultation Trigger Event), (b) the Controlling Class Representative (during the continuance of a Control Termination Event but prior to the occurrence and continuance of a Consultation Termination Event and only with respect to any Serviced Loan that is not an Excluded Mortgage Loan) or (c) with respect to any Serviced Companion Loan, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) (if and when provided in the related Co-Lender Agreement), as applicable, and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of the Operating Advisor or (during the continuance of a Control Termination Event) the Controlling Class Representative or, with respect to any ~~applicable Consulting Party~~Serviced Companion Loan and subject to the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative). In the event that ~~any applicable Consulting Party~~ the Operating Advisor, the Controlling Class Representative, the related Serviced Companion Loan Holder (or its Companion Loan Holder Representative), or the related Outside Controlling Note Holder, as applicable, does not propose alternative courses of action within 10 Business Days after receipt of such Asset Status Report, the Special Servicer shall (subject to the approval rights of any applicable Directing Holder) implement the Asset Status Report as proposed by the Special Servicer. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any Certificate Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the summary of the Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event, the Special Servicer shall deliver to the Operating Advisor only each related Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the related Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this Agreement or the REMIC Provisions, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) or any party to this Agreement or their respective Affiliates, officers, directors, employees or agents to any claim, suit or liability, cause any Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.within

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2017-C41), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2017-C4)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Midland Loan Services, ~~LLC~~ a Division of PNC Bank, National Association is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans and ~~each Serviced Loan Combination (other than Outside Serviced Mortgage Loans)~~the Whole Loan. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or ~~Serviced Loan Combination~~the Whole Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable Directing Holder~~the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), ~~and any applicable Consulting Parties~~ the Certificate Administrator, the related Companion Loan Holder (in the case of a Whole Loan) and, for posting to the the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or ~~Serviced Loan Combination~~Whole Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable Directing Holder~~the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), ~~any applicable Consulting Party~~ the Certificate Administrator, the related Companion Loan Holders and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related ~~Serviced~~ Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s)))Holders. The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced~~ the Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, with respect to a Whole Loan, the related Companion Loan Holder (or its Companion Loan Holder Representative) shall, at all times, be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report as set forth in Section 3.27(d) of this Agreement. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any ~~Serviced~~ Companion Loan Holder, any Companion Loan Holder Representative or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or ~~Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement~~Whole Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause any Trust REMIC to fail to qualify as a ~~REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes~~REMIC, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2012-Gc8), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2012-Gc8)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Midland Loan Services, ~~LLC~~ a Division of PNC Bank, National Association is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans and ~~each Serviced Loan Combination (other than Outside Serviced Mortgage Loans)~~the Whole Loan. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision or, if applicable, Whole Loan Major Decision (or making a determination not to take action with respect to a Major Decision or, if applicable, Whole Loan Major Decision) with respect to a Specially Serviced Mortgage Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or ~~Serviced Loan Combination~~the Whole Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holder (in the case of a Whole Loan) and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or ~~Serviced Loan Combination~~Whole Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holders and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related ~~Serviced~~ Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s)))Holders. The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced~~ the Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, for as long as a Companion Loan Holder is the Whole Loan Directing Holder for a Whole Loan, no request for approval of the Controlling Class Representative shall be made on any matter related to such Whole Loan, nor shall the Operating Advisor have the right to consult on any matter related to such Whole Loan, nor shall the Controlling Class Representative have the right to consent on any matter related to such Whole Loan, except that the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event) shall have the rights set forth in the applicable Intercreditor Agreement. With respect to each Whole Loan and any related REO Property, for so long as the related Companion Loan Holder is the applicable Whole Loan Directing Holder, the related Companion Loan Holder shall exercise all approval rights regarding any Asset Status Report in respect of such Whole Loan or REO Property set forth in the second paragraph of this Section 3.21(b) without regard to the occurrence of any Control Termination Event or Consultation Termination Event. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Mortgage Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any ~~Serviced Companion~~ Whole Loan ~~Holder, any Companion Loan~~ Directing Holder ~~Representative~~ or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or ~~Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement~~Whole Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause any Trust REMIC to fail to qualify as a ~~REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes~~REMIC, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2012-Gcj7), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2012-Gcj7)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners, LLC~~ [_____] is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans ~~and each Serviced Loan Combination~~ [(other than ~~Outside~~ a Non-Serviced Mortgage Loan)] and the Whole Loans). (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or ~~Serviced Loan Combination~~Whole Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holder and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or ~~Serviced Loan Combination~~Whole Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holders and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related ~~Serviced~~ Companion Loan ~~Holder(s)~~ Holders (as a collective whole as if such Certificateholders, and/or ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, if applicable, constitute a single ~~lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))~~lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced~~ the Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, with respect to a Whole Loan, the related Companion Loan Holder (or its Companion Loan Holder Representative) shall, at all times, be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report as set forth in Section 3.27(d) of this Agreement. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any ~~Serviced~~ Companion Loan Holder, any Companion Loan Holder Representative or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or ~~Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement~~Whole Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor ~~trust for federal income tax purposes~~trust, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp), Pooling and Servicing Agreement (Gs Mortgage Securities Corp Ii)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~[______], ~~LLC~~ is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans and ~~each Serviced~~ the Loan ~~Combination (other than Outside Serviced Mortgage Loans)~~Combination. (b) The Special Servicer, at the earlier of (x) within 60 [__] days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Mortgage Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or ~~Serviced~~ the Loan Combination. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the ~~Operating~~ Trust Advisor (during a Collective Consultation Period or a Senior Consultation Period), the Subordinate Class Representative (during a Subordinate Control Period or a Collective Consultation Period), [the Certificate Administrator,] the Non-Trust Mortgage Interest Holder (in the case of the Loan Combination) and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Subordinate Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan ~~or Serviced Loan Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the ~~Mortgage~~ Loan ~~or Serviced Loan Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage ~~Loan or Serviced Loan Combination~~Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a ~~non-~~non recourse carve-out under the related Mortgage Loan ~~or Serviced Loan Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ During a Subordinate Control Period, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Subordinate Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Subordinate Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, during a Subordinate Control Period, the ~~applicable Directing Holder~~ Subordinate Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the ~~Operating~~ Trust Advisor (during a Collective Consultation Period or a Senior Consultation Period), the Subordinate Class Representative (during a Subordinate Control Period or a Collective Consultation Period), the Certificate Administrator, the Non-Trust Mortgage Interest Holder and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ During a Subordinate Control Period, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the Controlling~~ Subordinate Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s)))Non-Trust Mortgage Interest Holder. The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, during a Subordinate Control Period, if the ~~related Directing Holder~~ Subordinate Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Subordinate Class Representative , provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related ~~Serviced Companion Loan Holder(s)~~Non-Trust Mortgage Interest Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced Companion Loan Holder(s)~~ the Non-Trust Mortgage Interest Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, during a Subordinate Control Period, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Subordinate Class Representative . The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. ~~If the Special Servicer acts~~ During a Collective Consultation Period or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Senior Consultation ~~Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Period, the Special Servicer shall consult ~~on a non-binding basis~~ with the ~~Operating~~ Trust Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the ~~Operating~~ Trust Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the ~~Operating~~ Trust Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, during a Collective Consultation Period or a Senior Consultation Period, ~~with respect to~~ but during a ~~Serviced Loan Combination, at all times if and to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (~~Subordinate Control Period or ~~its Companion Loan Holder Representative) shall be entitled to consult on~~ a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreCollective Consultation Period, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Subordinate Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Subordinate Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Trust Advisor and/or the Subordinate Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Trust Advisor or the Subordinate Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, during a Senior Control Period, the Subordinate Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. During a Collective Consultation Period or a Senior Consultation Period, the Subordinate Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, for as long as the Companion Interest Holder or its designee is the Loan Combination Directing Holder: (i) no consultation with or request for approval of the Trust Advisor or the Subordinate Class Representative shall be required on any matter related to any Loan Combination or any related REO Property, to the extent permitted under the Intercreditor Agreement; and (ii) the Loan Combination Directing Holder shall be entitled to exercise with respect to the Loan Combination or related REO Property all of the Subordinate Control Period rights and powers of the Subordinate Class Representative set forth in the foregoing paragraphs of this Section 3.21(b), as well as all rights of the Loan Combination Directing Holder under the Intercreditor Agreement. The rights of any Companion Interest Holder or its designee as the Loan Combination Directing Holder will be unaffected during a Subordinate Control Period, a Collective Consultation Period or a Senior Consultation Period. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Mortgage Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) ~~Prior to the occurrence and continuance of~~ During a Subordinate Control ~~Termination Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event~~Period, the Special Servicer shall deliver to the ~~Operating~~ Trust Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the ~~Operating~~ Trust Advisor, ~~any Serviced Companion~~ the Loan ~~Holder, any Companion Loan~~ Combination Directing Holder ~~Representative~~ or the ~~related Directing Holder~~ Subordinate Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or ~~Serviced~~ the Loan Combination, ~~any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement,~~ expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a ~~REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes~~REMIC, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (RBS Commercial Funding Inc.), Pooling and Servicing Agreement (RBS Commercial Funding Inc.)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Midland Loan Services, ~~LLC~~ a Division of PNC Bank, National Association is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans (other than the Outside Serviced Trust Loans) and each Serviced Loan ~~Combination (other than Outside Serviced Mortgage Loans)~~Combination. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Loan Combination. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~an applicable Control Termination Event), ~~any~~ the related Directing Holder (prior to the occurrence and continuance of an applicable ~~Directing Holder~~Consultation Termination Event), ~~and any applicable Consulting Parties~~ the Certificate Administrator, the related Serviced Companion Loan Holder (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the related Directing Holder if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any~~ For so long as an applicable ~~Directing Holder does~~ Control Termination Event has not ~~disapprove an Asset Status Report in writing~~ occurred and is not continuing, if within 10 Business Days of receiving an Asset Status Report, the related Directing Holder does not disapprove such Asset Status ~~Report~~Report in writing, then such Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the occurrence and continuance of any applicable Control Termination Event, the related Directing Holder disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~an applicable Control Termination Event), ~~any~~ the Controlling Class Representative (prior to the occurrence and continuance of an applicable ~~Directing Holder~~Consultation Termination Event), the Certificate Administrator, any ~~applicable Consulting Party~~ related Serviced Companion Loan Holder(s) (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any applicable Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the related Directing Holder ~~(but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion ~~Loan(s)~~Loan)). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as an applicable Control Termination Event has not occurred and is not continuing, if the related Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the related Directing Holder, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan Holder(s), or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and any related Serviced Companion Loan Holder(s) (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of an applicable Control Termination Event, to contact the related Directing ~~Holder (during the period that such Directing Holder has approval rights); provided that the~~ Holder. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a an applicable Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of an applicable Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses~~ continuance of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. Furthermorean applicable Consultation Termination Event, the Special Servicer shall also consult on a non-binding basis with ~~any other applicable Consulting Parties~~ the related Directing Holder in connection with each related Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the related Directing Holder shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ (a) the Operating Advisor or (b) the related Directing Holder, as applicable, and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor, the Controlling Class Representative or the Boca Hamptons Plaza Portfolio Controlling Note Holder, as applicable, does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of an applicable Consultation Termination Event, the related Directing Holder shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of an applicable Control Termination Event, the related Directing Holder shall have no right to consent to any Asset Status Report under this Section 3.21(b). (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a an applicable Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each related Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the related Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, ~~any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement,~~ expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor. (g) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering including Section 326 of the USA PATRIOT Act (for the purposes of this clause (g), “Applicable Laws”), the Special Servicer may be required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Special Servicer. Accordingly, each of the parties hereto agrees to provide to the Special Servicer, upon its reasonable request, from time to time such identifying information and documentation as may be readily available to such party in order to enable the Special Servicer to comply with Applicable Laws; provided that the Special Servicer shall be responsible for all reasonable actual out-of-pocket expenses incurred by such party in connection therewith.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C27), Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2015-Gc27)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Rialto Capital Advisors, LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans (other than the Outside Serviced Trust Loans) and each Serviced Loan ~~Combination (other than Outside Serviced Mortgage Loans)~~Combination. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced Loan Combination. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ the Directing ~~Holder~~Holder (prior to the occurrence and continuance of a Consultation Termination Event), ~~and any applicable Consulting Parties~~ the Certificate Administrator, the related Serviced Companion Loan Holder (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related~~ Directing Holder if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Loan Combination and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Loan Combination and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced Loan Combination; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Directing Holder does not disapprove such Asset Status Report in writing, then ~~such~~ the Directing Holder shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable~~ occurrence and continuance of any Control Termination Event, the Directing Holder disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable~~ the Directing ~~Holder~~Holder (prior to the occurrence and continuance of a Consultation Termination Event), ~~any applicable Consulting Party~~ the Certificate Administrator, the related Serviced Companion Loan Holders (in the case of a Serviced Loan Combination) and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related~~ Directing Holder ~~(but, if the Controlling Class Representative is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan ~~Holder(s)~~ Holders (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan ~~Holder(s)~~Holders, if applicable, constitute a single ~~lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))~~lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related~~ Directing Holder does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related~~ Directing Holder, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related~~ the Serviced Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of a Control Termination Event, to contact the ~~related~~ Directing ~~Holder (during the period that such Directing Holder has approval rights); provided that the~~ Holder. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult on a non-binding basis with ~~any other applicable Consulting Parties~~ the Directing Holder in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Directing Holder shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Directing Holder and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Directing Holder does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Directing Holder shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Directing Holder shall have no right to consent to any Asset Status Report under this Section 3.21(b). (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the ~~related~~ Directing Holder that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced Loan Combination, ~~any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement,~~ expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor. (g) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (for the purposes of this clause (g), “Applicable Laws”), the Master Servicer may be required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Master Servicer. Accordingly, each of the parties hereto agrees to provide to the Master Servicer, upon its reasonable request, from time to time such identifying information and documentation as may be readily available to such party in order to enable the Master Servicer to comply with Applicable Laws; provided that the Master Servicer shall be responsible for all reasonable actual out-of-pocket expenses incurred by such party in connection therewith.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2014-Gc23)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Rialto Capital Advisors, LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans ~~and each Serviced Loan Combination~~ (other than ~~Outside~~ a Non-Serviced Mortgage ~~Loans)~~Loan) and the Serviced Whole Loan. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holder and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or Serviced Whole Loan ~~Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holders and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related ~~Serviced~~ Companion Loan ~~Holder(s)~~ Holders (as a collective whole as if such Certificateholders, and/or ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, if applicable, ~~constitute~~ constituted a single ~~lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))~~lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced~~ the Companion Loan ~~Holder(s)~~ Holders (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders of Certificates that were previously included in the Control Eligible ~~Classes~~Certificates), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, with respect to a Serviced Whole Loan, the related Companion Loan Holder (or its Companion Loan Holder Representative) shall, at all times, be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report as set forth in Section 3.29(d) of this Agreement. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any ~~Serviced~~ Companion Loan Holder, any Companion Loan Holder Representative or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or Serviced ~~Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement~~Whole Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor ~~trust for federal income tax purposes~~trust, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj16)

Appointment of Special Servicer; Asset Status Reports. (a) LNR Partners, LLC is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans ~~and each Serviced Loan Combination~~ (other than ~~Outside~~ a Non-Serviced Mortgage ~~Loans~~Loan). (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage ~~Loan or Serviced Loan Combination~~Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan ~~or Serviced Loan Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan ~~or Serviced Loan Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage ~~Loan or Serviced Loan Combination~~Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan ~~or Serviced Loan Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the Certificate Administrator, the related Companion Loan Holders and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders ~~and, if applicable, the related Serviced Companion Loan Holder(s)~~ (as a collective whole as if such ~~Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute~~ Certificateholders constituted a single ~~lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))~~lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the ~~Certificateholders and any related Serviced Companion Loan Holder(s)~~Certificateholders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced Companion Loan Holder(s) (if applicable) and~~ the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders of Certificates that were previously included in the Control Eligible ~~Classes~~Certificates), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating ~~Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative~~ Advisor or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage ~~Loan or Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement~~Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a grantor ~~trust for federal income tax purposes~~trust, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor. The Trustee shall be entitled to rely, conclusively, on any determination by the Master Servicer that an Advance, if made, would be a Nonrecoverable Advance. The Trustee, in determining whether or not a proposed Advance would be a Nonrecoverable Advance, shall use its good faith business judgment.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GS Mortgage Securities Trust 2013-Gcj14)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~[______], ~~LLC~~ is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans and ~~each Serviced~~ the Loan ~~Combination (other than Outside Serviced Mortgage Loans)~~Combination. (b) The Special Servicer, at the earlier of (x) within 60 [__] days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Mortgage Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or ~~Serviced~~ the Loan Combination. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the ~~Operating~~ Trust Advisor (during a Collective Consultation Period or a Senior Consultation Period), the Subordinate Class Representative (during a Subordinate Control Period or a Collective Consultation Period), [the Certificate Administrator,] the Non-Trust Mortgage Loan Holder (in the case of the Loan Combination) and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Subordinate Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan ~~or Serviced Loan Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the ~~Mortgage~~ Loan ~~or Serviced Loan Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage ~~Loan or Serviced Loan Combination~~Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan ~~or Serviced Loan Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ During a Subordinate Control Period, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, the Subordinate Class Representative does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Subordinate Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, during a Subordinate Control Period, the ~~applicable Directing Holder~~ Subordinate Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the ~~Operating~~ Trust Advisor (during a Collective Consultation Period or a Senior Consultation Period), the Subordinate Class Representative (during a Subordinate Control Period or a Collective Consultation Period), the Certificate Administrator, the Non-Trust Mortgage Loan Holder and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.13 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ During a Subordinate Control Period, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the Controlling~~ Subordinate Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the ~~related Serviced Companion~~ Non-Trust Mortgage Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s)))Holder. The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, during a Subordinate Control Period, if the ~~related Directing Holder~~ Subordinate Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Subordinate Class Representative , provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related ~~Serviced Companion~~ Non-Trust Mortgage Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced Companion~~ the Non-Trust Mortgage Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, during a Subordinate Control Period, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Subordinate Class Representative . The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. ~~If the Special Servicer acts~~ During a Collective Consultation Period or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Senior Consultation ~~Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Period, the Special Servicer shall consult ~~on a non-binding basis~~ with the ~~Operating~~ Trust Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the ~~Operating~~ Trust Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the ~~Operating~~ Trust Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, during a Collective Consultation Period or a Senior Consultation Period, ~~with respect to~~ but during a ~~Serviced Loan Combination, at all times if and to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (~~Subordinate Control Period or ~~its Companion Loan Holder Representative) shall be entitled to consult on~~ a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreCollective Consultation Period, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Subordinate Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Subordinate Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Trust Advisor and/or the Subordinate Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Trust Advisor or the Subordinate Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, during a Senior Control Period, the Subordinate Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. During a Collective Consultation Period or a Senior Consultation Period, the Subordinate Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, for as long as the Non-Trust Mortgage Loan Holder or its designee is the Loan Combination Directing Holder: (i) no consultation with or request for approval of the Trust Advisor or the Subordinate Class Representative shall be required on any matter related to any Loan Combination or any related REO Property, to the extent permitted under the Intercreditor Agreement; and (ii) the Loan Combination Directing Holder shall be entitled to exercise with respect to the Loan Combination or related REO Property all of the Subordinate Control Period rights and powers of the Subordinate Class Representative set forth in the foregoing paragraphs of this Section 3.21(b), as well as all rights of the Loan Combination Directing Holder under the Intercreditor Agreement. The rights of any Non-Trust Mortgage Loan Holder or its designee as the Loan Combination Directing Holder will be unaffected during a Subordinate Control Period, a Collective Consultation Period or a Senior Consultation Period. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Mortgage Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) ~~Prior to the occurrence and continuance of~~ During a Subordinate Control ~~Termination Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event~~Period, the Special Servicer shall deliver to the ~~Operating~~ Trust Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the ~~Operating~~ Trust Advisor, ~~any Serviced Companion~~ the Loan ~~Holder, any Companion Loan~~ Combination Directing Holder ~~Representative~~ or the ~~related Directing Holder~~ Subordinate Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or ~~Serviced~~ the Loan Combination, ~~any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement,~~ expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a ~~REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes~~REMIC, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the ~~Operating~~ Trust Advisor.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Barclays Commercial Mortgage Securities LLC)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners, LLC~~ [_____] is hereby appointed as the initial Special Servicer to ~~specially~~ service each of the Mortgage Loans and ~~each Serviced Loan Combination (other than Outside Serviced Mortgage~~ the Whole Loans). (b) The Special Servicer, at the earlier of (x) ~~within 60~~ Within [__] days after a Servicing Transfer Event occurs ~~and~~ or (y) at least [__] days prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Mortgage Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or ~~Serviced Loan Combination~~Whole Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative (but only prior to the occurrence and continuance of a Consultation Termination Event), any related Companion Interest Holder and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.14 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate Administrator. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan ~~or Serviced Loan Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the ~~Mortgage~~ Loan ~~or Serviced Loan Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) ~~a copy~~ the appraised value of the ~~last obtained Appraisal of~~ related Mortgaged Properties together with the ~~Mortgaged Property~~assumptions used in the calculation thereof; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage ~~Loan or Serviced Loan Combination;~~Loan; and (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) [other than with respect to a Major Decision described in clause (p) or (s) of the definition thereof with respect to a non-Specially Serviced Mortgage Loan,] an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder~~ For so long as there is no continuing Control Termination Event, if within ten (10) Business Days of receiving an Asset Status Report, the Controlling Class Representative does not disapprove an such Asset Status Report in ~~writing within 10 Business Days of receiving such Asset Status Report~~writing, ~~then such Directing Holder shall be deemed to have approved such Asset Status Report and~~ the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event, the Controlling Class Representative disapproves such Asset Status Report within 10 ten (10) Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (after the occurrence and during the continuance of a Control Termination Event), the Controlling Class Representative (but only prior to the occurrence and continuance of a Consultation Termination Event), the Trustee, any related Companion Interest Holder and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.14 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 ten (10) Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related ~~Serviced~~ Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s)))Interest Holder. The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 sixty (60) Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if following the ~~Special Servicer determines that emergency action is necessary~~ occurrence of an extraordinary event with respect to ~~protect the related~~ any Mortgaged ~~Property or the interests of the Certificateholders and any related Serviced Companion Loan Holder(s)~~Property, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to ~~the related~~ such Mortgaged Property before the expiration of a 10 ten (10) Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 ten (10) Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced Companion Loan Holder(s) (if applicable) and~~ the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case occurrence of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, after the occurrence of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, for as long as the Companion Interest Holder or its designee is the Whole Loan Directing Holder: (i) no consultation with or request for approval of the Operating Advisor or the Controlling Class Representative shall be required on any matter related to any Whole Loan or any related REO Property, to the extent permitted under the Intercreditor Agreement; and (ii) the Whole Loan Directing Holder shall be entitled to exercise with respect to the Whole Loan or related REO Property all of the pre-Control Termination Event rights and powers of the Controlling Class Representative set forth in the foregoing paragraphs of this Section 3.21(b), as well as all rights of the Whole Loan Directing Holder under the Intercreditor Agreement. The rights of any Companion Interest Holder or its designee as the Whole Loan Directing Holder will be unaffected by the occurrence of a Control Termination Event or a Consultation Termination Event. (c) Subject to Section ~~3.21(b~~3.21(e) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the ~~Certificate Administrator~~ Trustee with an Investor Certification), the ~~Certificate Administrator~~ Trustee shall mail, without charge, to the address specified in such request a copy of the ~~summary of the Final~~ most current Asset Status Report for each Specially Serviced Mortgage Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and ~~continuance~~ continuation of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, ~~any Serviced Companion~~ the Whole Loan ~~Holder, any Companion Loan~~ Directing Holder ~~Representative~~ or the ~~related Directing Holder that~~ Controlling Class Representative would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or ~~Serviced Loan Combination, any related Loan Documents, any related Co-Lender Agreement or any intercreditor agreement~~Whole Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a ~~REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes~~REMIC, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp Ii)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~Midland Loan Services, ~~LLC~~ a Division of PNC Bank, National Association is hereby appointed as the initial Special Servicer to specially service each of the Mortgage Loans ~~and each Serviced Loan Combination~~ (other than ~~Outside~~ any Non-Serviced Mortgage Loan) and the Serviced Whole Loans). (b) The Special Servicer, at the earlier of (x) within 60 thirty (30) days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major ~~Decision)~~ Decision with respect to a Specially Serviced Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable Directing Holder~~the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event and only for so long as the related Specially Serviced Loan is not an Excluded Loan), ~~and any applicable Consulting Parties~~ the Certificate Administrator, the related Serviced Companion Loan Holder and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider; provided, however, that the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of an Asset Status Report that is either signed by the Directing Holder entity or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary affiliates of each ~~Final Asset Status Report to the Certificate Administrator~~other. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably ~~determinable~~determinable or applicable: (i) summary of the status of the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the Mortgage Loan or ~~Serviced~~ Whole Loan ~~Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) a copy of the last obtained Appraisal of the Mortgaged Property; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan; (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Whole Loan ~~Combination~~ and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove~~ For so long as there is no continuing Control Termination Event, if within 10 Business Days (or, in the case of an Asset Status Report ~~in writing within 10~~ prepared prior to making a determination of an Acceptable Insurance Default, 20 Business ~~Days~~ Days) of receiving ~~such~~ an Asset Status Report, the Controlling Class Representative (except with respect to any Excluded Loan) does not disapprove such Asset Status Report in writing, then ~~such Directing Holder~~ the Controlling Class Representative shall be deemed to have approved such Asset Status Report and the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Mortgage Loan Documents. If If, prior to the ~~applicable Directing Holder~~ occurrence and continuance of any Control Termination Event and such Asset Status Report does not relate to an Excluded Loan, the Controlling Class Representative disapproves such Asset Status Report within 10 Business Days (or, in the case of ~~receipt and the Special Servicer has not made the affirmative~~ an Asset Status Report prepared prior to making a determination ~~contemplated below~~of an Acceptable Insurance Default, 20 Business Days) of receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (~~subject to Section 3.21(e)~~ after the occurrence and during the continuance of ~~this Agreement~~a Control Termination Event), ~~any applicable Directing Holder~~the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event and only if such Asset Status Report does not relate to an Excluded Loan), ~~any applicable Consulting Party~~ the Certificate Administrator, the related Companion Loan Holders and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section ~~12.13~~ 11.13 of this Agreement, the Rule 17g-5 Information Provider a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ Prior to the occurrence and continuance of any Control Termination Event, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and~~ (only if an Excluded ~~Mortgage~~ Loan is not involved) shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days (or, in the case of an Asset Status Report prepared prior to making a determination of an Acceptable Insurance Default, 20 Business Days) of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the related Serviced Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single ~~lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s))~~lender). The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and ~~not rejected~~ approved or deemed approved pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Control Termination Event has not occurred and is not continuing and only if an Excluded Loan is not involved, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as ~~directed by~~ set forth in the ~~related Directing Holder,~~ most recently submitted Asset Status Report; provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related Serviced Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period (or 20 Business Day period, if applicable) if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period (or 20 Business Day period, if applicable) would materially and adversely affect the interest of the Certificateholders and ~~any~~ the related Serviced Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, prior to the occurrence and continuance of any Control Termination Event, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. If the Special Servicer acts or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class ~~Mortgage~~ Loan (in the form of Exhibit M-1C or ~~M-1F~~M-1D), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class ~~Mortgage~~ Loan shall be sent via email to xxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx pursuant to Section 3.32 and shall be labeled by the Special Servicer with “Excluded ~~Information~~Controlling Class Loan” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination ~~Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Event, the Special Servicer shall consult on a non-binding basis with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within ~~10 Business Days~~ ten (10) days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders of Certificates that were previously included in the Control Eligible ~~Classes~~Certificates), as a collective whole as if such Certificateholders constituted a single lender. In addition, after the occurrence and during the continuance of a Control Termination Event, ~~with respect to a Serviced Loan Combination, at all times if and~~ but prior to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer occurrence and ~~propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case~~ continuance of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreConsultation Termination Event, the Special Servicer shall also consult on a non-binding basis with the Controlling Class Representative (other than any ~~other applicable Consulting Parties~~ Asset Status Report with respect to an Excluded Loan) in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within ~~10 Business Days~~ ten (10) days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within ~~10 Business Days~~ ten (10) days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. For the avoidance of doubt, the Controlling Class Representative shall not have any consultation or approval rights with respect to an Asset Status Report that relates to an Excluded Loan. Notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Consultation Termination Event, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. After the occurrence and during the continuance of a Control Termination Event, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). From and after the Closing Date, the Controlling Class Representative shall have no right to receive any Asset Status Report related to an Excluded Loan or otherwise to consent or object thereto under this Section 3.21(b) or otherwise consult with the Special Servicer with respect to any matter set forth therein. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, with respect to a Serviced Whole Loan, the related Serviced Companion Loan Holder (or its Companion Loan Holder Representative) shall, at all times contemplated by the related Co-Lender Agreement, be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report as set forth in Section 3.27(d) of this Agreement. The Special Servicer shall deliver (i) any Final Asset Status report to the 17g-5 Information Provider for posting on its Website, and (ii) a summary of the Final Asset Status Report (which such summary shall be prepared on a loan-by-loan basis) to the Certificate Administrator for posting on its website. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan. (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor Certification), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) ~~or the summary of any Final Asset Status Report (or copy thereof)~~ with respect to any Excluded Controlling Class ~~Mortgage~~ Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) Prior to the occurrence and continuance of a Control Termination ~~Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger~~ Event, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) ~~With respect to any Asset Status Report provided to~~ Notwithstanding the ~~Operating Advisor pursuant to this Section 3.21~~foregoing, neither the Master Servicer nor the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, any Serviced Companion Loan Holder, any Companion Loan Holder Representative or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Master Servicer or the Special ~~Servicer~~ Servicer, as applicable, to violate any applicable law, be inconsistent with the Servicing ~~Standard~~Standard or any Co-Lender Agreement, require or cause the Master Servicer or the Special Servicer, as applicable, to violate provisions of this Agreement, require or cause the Special Servicer ~~to violate provisions of this Agreement~~ or ~~the REMIC Provisions, require or cause the Special~~ Master Servicer to violate the terms of any Co-Lender Agreement, any Mortgage Loan or Serviced ~~Loan Combination~~Whole Loan, ~~any related Loan Documents, any related Co-Lender Agreement~~ or ~~any intercreditor agreement,~~ expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a REMIC ~~or the Grantor Trust to fail to qualify as a grantor trust~~ for federal income tax purposes, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC Provisions, or the imposition of a tax upon either Trust REMIC, or materially expand the scope of ~~any~~ the Master Servicer’s or the Special Servicer’s ’s, as applicable, responsibilities under this Agreement or any Co-Lender Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, neither the Master Servicer nor the Special Servicer is under no any obligation to act upon any recommendation of the Operating Advisor.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CSAIL 2015-C4 Commercial Mortgage Trust)

Appointment of Special Servicer; Asset Status Reports. (a) ~~LNR Partners~~[SPECIAL SERVICER], ~~LLC~~ is hereby appointed as the initial Special Servicer to ~~specially~~ service each of the Mortgage Loans and ~~each Serviced Loan Combination (other than Outside Serviced Mortgage Loans)~~the Split-Loan. (b) The Special Servicer, at the earlier of (x) within 60 days after a Servicing Transfer Event occurs and (y) prior to taking action with respect to any Major Decision (or making a determination not to take action with respect to a Major Decision) with respect to a Specially Serviced Mortgage Loan, shall prepare a report (the “Asset Status Report”) for the related Mortgage Loan or ~~Serviced Loan Combination~~the Split-Loan. Each Asset Status Report ~~shall~~ will be delivered in electronic format to the Operating Advisor (during a Collective Consultation Period or Senior Consultation Period), the Controlling Class Representative (during a Subordinate Control Period or Collective Consultation Period), the Certificate Administrator, the Companion Loan Holder (in the case of the [_____] Split-Loan) and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, and any applicable Consulting Parties and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.14 of this Agreement, ~~the Rule 17g-5 Information Provider~~each Rating Agency; provided, however, the Special Servicer shall not be required to deliver an Asset Status Report to the ~~related Directing Holder~~ Controlling Class Representative or obtain the consent of the Controlling Class Representative if they are the same entity. The Special Servicer shall notify the Operating Advisor of whether any Asset Status Report delivered to the Operating Advisor is a Final Asset Status Report, which notification may be via email and may be satisfied by (i) delivery of entity or an Asset Status Report that is either signed by the Directing Holder or that otherwise includes an indication that such Asset Status Report is deemed approved due to the passage of any required consent or consultation time period or (ii) such other method as reasonably agreed to by the Operating Advisor and the Special Servicer. The Special Servicer shall deliver a summary of each Final Asset Status Report to the Certificate AdministratorAffiliate. Such Asset Status Report shall be consistent with the Servicing Standard and set forth the following information to the extent reasonably determinable: (i) summary of the status of the related Mortgage Loan ~~or Serviced Loan Combination~~ and any negotiations with the Mortgagors; (ii) if a Servicing Transfer Event has occurred and is continuing: (A) a discussion of the legal and environmental considerations reasonably known at such time to the Special Servicer, consistent with the Servicing Standard, that are applicable to the exercise of remedies as aforesaid and to the enforcement of any related guaranties or other collateral for the ~~Mortgage~~ Loan ~~or Serviced Loan Combination~~ and whether outside legal counsel has been retained; (B) the most current rent roll and income or operating statement available for the related Mortgaged Properties; (C) the Special Servicer’s recommendations on how the related Mortgage Loan might be returned to performing status or otherwise realized upon; (D) ~~a copy~~ the appraised value of the ~~last obtained Appraisal of~~ related Mortgaged Properties together with the ~~Mortgaged Property~~assumptions used in the calculation thereof; (E) the status of any foreclosure actions or other proceedings undertaken with respect thereto, any proposed workouts with respect thereto and the status of any negotiations with respect to such workouts, and an assessment of the likelihood of additional defaults under the related Mortgage ~~Loan or Serviced Loan Combination;~~Loan; and (F) a description of any amendment, modification or waiver of a material term of any ground lease; and (G) if the Special Servicer elects to proceed with a non-judicial foreclosure, then a statement as to (i) whether there was a violation of a non-recourse carve-out under the related Mortgage Loan or Serviced Loan Combination and (ii) any determination not to pursue a deficiency judgment against the related Mortgagor or guarantor; (iii) a description of any such proposed or taken actions; (iv) the alternative courses of action that were or are being considered by the Special Servicer in connection with the proposed or taken actions; (v) the decision that the Special Servicer made, or intends or proposes to make, including a narrative analysis setting forth the Special Servicer’s rationale for its proposed decision, including its rejection of the alternatives; (vi) an analysis of whether or not taking such proposed action is reasonably likely to produce a greater recovery on a present value basis than not taking such action, setting forth (x) the basis on which the Special Servicer made such determination and (y) the net present value calculation (including the applicable Calculation Rate used) and all related assumptions; and (vii) such other information as the Special Servicer deems relevant in light of the proposed or taken action and the Servicing Standard. ~~If any applicable Directing Holder does not disapprove an Asset Status Report in writing~~ During a Subordinate Control Period, if within 10 Business Days of receiving ~~such~~ an Asset Status Report, ~~then such Directing Holder shall be deemed to have approved~~ the Controlling Class Representative does not disapprove such Asset Status Report ~~and~~ in writing, the Special Servicer shall implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special Servicer may not take any action that is contrary to applicable law, the Servicing Standard or the terms of the applicable Loan Documents. If If, during a Subordinate Control Period, the ~~applicable Directing Holder~~ Controlling Class Representative disapproves such Asset Status Report within 10 Business Days of ~~receipt and the Special Servicer has not made the affirmative determination contemplated below~~receipt, the Special Servicer ~~shall~~ will revise such Asset Status Report and deliver to the Operating Advisor (during a Collective Consultation Period or Senior Consultation Period), the Controlling Class Representative (during a Subordinate Control Period or Collective Consultation Period), the Certificate Administrator, the Companion Loan Holder and, subject to Section ~~3.21(e) of this Agreement), any applicable Directing Holder, any applicable Consulting Party and, for posting to the Rule 17g-5 Information Provider’s Website pursuant to Section 12.13~~ 11.14 of this Agreement, ~~the Rule 17g-5 Information Provider~~ each Rating Agency a new Asset Status Report as soon as practicable, but in no event later than 30 days after such disapproval. ~~The~~ For so long as a Subordinate Control Period is in effect, the Special Servicer shall revise such Asset Status Report as described above until the ~~related Directing Holder (but, if the~~ Controlling Class Representative ~~is the related Directing Holder, only if a Control Termination Event does not exist and only if an Excluded Mortgage Loan is not involved)~~ shall fail to disapprove such revised Asset Status Report in writing within 10 Business Days of receiving such revised Asset Status Report or until the Special Servicer makes a determination, consistent with the Servicing Standard, that such objection is not in the best interests of all the Certificateholders and, if applicable, the ~~related Serviced~~ Companion Loan Holder(s) (as a collective whole as if such Certificateholders, and/or Serviced Companion Loan Holder(s), if applicable, constitute a single lender (and, in the case of a Serviced AB Loan Combination, taking into account the subordinate nature of the related Subordinate Companion Loan(s)))Holder. The Special Servicer may, from time to time, modify any Asset Status Report it has previously delivered and implement such report, provided such report shall have been prepared, reviewed and not rejected pursuant to the terms of this ~~Section 3.21(b)~~Section. If In any event, for so long as a Subordinate Control Period is in effect, if the ~~related Directing Holder~~ Controlling Class Representative does not approve an Asset Status Report within 60 Business Days from the first submission thereof, the Special Servicer shall take such action as directed by the ~~related Directing Holder~~Controlling Class Representative, provided such action does not violate the Servicing ~~Standard (or, if such action would violate the Servicing~~ Standard, the Special Servicer shall take such action as was reflected in the most recent Asset Status Report prepared by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report). Notwithstanding the foregoing, if the Special Servicer determines that emergency action is necessary to protect the related Mortgaged Property or the interests of the Certificateholders and any related ~~Serviced~~ Companion Loan ~~Holder(s)~~Holders, or if a failure to take any such action at such time would be inconsistent with the Servicing Standard, the Special Servicer may take actions with respect to the related Mortgaged Property before the expiration of a 10 Business Day period if the Special Servicer reasonably determines in accordance with the Servicing Standard that failure to take such actions before the expiration of a 10 Business Day period would materially and adversely affect the interest of the Certificateholders and ~~any related Serviced~~ the Companion Loan ~~Holder(s)~~ Holder (if applicable) and the Special Servicer has made a reasonable ~~effort~~ effort, during any Subordinate Control Period, to contact the ~~related Directing Holder (during the period that such Directing Holder has approval rights); provided that the~~ Controlling Class Representative. The foregoing shall not relieve the Special Servicer of its duties to comply with the Servicing Standard. ~~If the Special Servicer acts~~ During a Collective Consultation Period or intends to act in accordance with either of the prior two sentences, then the Special Servicer shall act in accordance with the most recent applicable Asset Status Report provided by the Special Servicer with respect to the subject Serviced Loan that is consistent with the Servicing Standard and such Asset Status Report shall be deemed a Final Asset Status Report. To the extent that the Special Servicer received notice of an Excluded Controlling Class Mortgage Loan (in the form of Exhibit M-1C or M-1F), any Asset Status Report or Excluded Information delivered with respect to an Excluded Controlling Class Mortgage Loan shall be labeled by the Special Servicer with “Excluded Information” followed by the loan number and loan name. After the occurrence and during the continuance of a Control Termination Event (in the case of any Serviced Loan) or an 000 Xxxxx Xxxxxx Operating Advisor Senior Consultation ~~Trigger Event (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan)~~Period, the Special Servicer shall consult ~~on a non-binding basis~~ with the Operating Advisor in connection with each Asset Status Report prior to finalizing and executing such Asset Status Report and the Operating Advisor shall propose, by written notice, alternative courses of action within ~~10 Business Days~~ ten (10) days of receipt of each Asset Status Report to the extent the Operating Advisor determines such alternatives to be in the best interest of the Certificateholders (including any Certificateholders that were previously included in the Control Eligible Classes), as a collective whole as if such Certificateholders constituted a single lender. In addition, ~~, with respect to~~ during a Serviced Loan Combination, at all times if and to the extent so provided in the related Co-Lender Agreement, any related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) shall be entitled to consult on a non-binding basis with the Special Servicer and propose alternative courses of action in respect of any Asset Status Report within 10 Business Days of receiving such Asset Status Report; provided that, in the case of a Serviced Outside Controlled Loan Combination, a related Serviced Pari Passu Companion Loan Holder (or its Companion Loan Holder Representative) may be the related Outside Controlling Note Holder. FurthermoreCollective Consultation Period, the Special Servicer shall also consult ~~on a non-binding basis~~ with ~~any other applicable Consulting Parties~~ the Controlling Class Representative in connection with each ~~related~~ Asset Status Report prior to finalizing and executing such Asset Status Report and ~~each such other Consulting Party~~ the Controlling Class Representative shall be permitted to propose alternative courses of action within 10 ~~Business Days~~ days of receipt of each Asset Status ~~Report (other than any Asset Status Report with respect to an Excluded Mortgage Loan)~~Report. The Special Servicer shall consider any such proposals from ~~each applicable Consulting Party~~ the Operating Advisor and/or the Controlling Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement~~, but the Special Servicer will be under no obligation to revise such Asset Status Report based on the input or comments of any applicable Consulting Party~~. In the event that ~~any applicable Consulting Party~~ the Operating Advisor or the Controlling Class Representative does not propose alternative courses of action within 10 ~~Business Days~~ days after receipt of such Asset Status Report, the Special Servicer shall ~~(subject to the approval rights of any applicable Directing Holder)~~ implement the Asset Status Report as proposed by the Special Servicer. Notwithstanding anything to the contrary herein, during a Senior Consultation Period, the Controlling Class Representative shall have no right to receive any Asset Status Report or otherwise consult with the Special Servicer with respect to any matter set forth therein. During a Collective Consultation Period or a Senior Consultation Period, the Controlling Class Representative shall have no right to consent to any Asset Status Report under this Section 3.21(b). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, for as long as the Companion Loan Holder or its designee is the [_____] Directing Holder: (i) no consultation with or request for approval of the Operating Advisor or the Controlling Class Representative shall be required on any matter related to the [_____] Split-Loan or any related REO Property, to the extent permitted under the Intercreditor Agreement; and (ii) the [_____] Directing Holder shall be entitled to exercise with respect to the [_____] Split-Loan or related REO Property all of the Subordinate Control Period rights and powers of the Controlling Class Representative set forth in the foregoing paragraphs of this Section 3.21(b), as well as all rights of the [_____] Directing Holder under the Intercreditor Agreement. The rights of the Companion Loan Holder or its designee as the [_____] Directing Holder will be unaffected by the commencement of a Collective Consultation Period or Senior Consultation Period. (c) Subject to Section 3.21(b) of this Agreement, during the continuance of a Servicing Transfer Event, the Special Servicer shall have the authority to meet with the related Mortgagors and take any actions consistent with the Servicing Standard and the most recent Asset Status Report for the related Mortgage Loan.[Reserved] (d) Upon request of any Certificateholder (or any ~~Certificate~~ Beneficial Owner, if applicable, which shall have provided the Certificate Administrator with an Investor ~~Certification~~Certification substantially in the form of Exhibit M-1 to this Agreement), the Certificate Administrator shall mail, without charge, to the address specified in such request a copy of the ~~summary of the~~ Final Asset Status Report for each Specially Serviced Mortgage Loan; provided that an Excluded Controlling Class Holder shall not be provided with any Final Asset Status Report (or copy thereof) or the summary of any Final Asset Status Report (or copy thereof) with respect to any Excluded Controlling Class Mortgage Loan with respect to which such Excluded Controlling Class Holder is a Borrower Party. (e) ~~Prior to the occurrence and continuance of~~ During a Subordinate Control ~~Termination Event or (in the case of the 000 Xxxxx Xxxxxx Mortgage Loan) an 000 Xxxxx Xxxxxx Operating Advisor Consultation Trigger Event~~Period, the Special Servicer shall deliver to the Operating Advisor only each ~~related~~ Final Asset Status Report. (f) With respect to any Asset Status Report provided to the Operating Advisor pursuant to this Section 3.21, the Special Servicer shall make available to the Operating Advisor one or more Servicing Officers with relevant knowledge regarding the applicable Trust Loan and such Asset Status Report in order to address reasonable questions that the Operating Advisor may have relating to, among other things, such Asset Status Report and potential conflicts of interest and compensation with respect to such Asset Status Report. (g) Notwithstanding the foregoing, the Special Servicer shall not follow any advice, direction or consultation provided by the Operating Advisor, ~~any Serviced Companion~~ the Split-Loan ~~Holder, any Companion Loan~~ Directing Holder ~~Representative~~ or the ~~related Directing Holder~~ Controlling Class Representative that would require or cause the Special Servicer to violate any applicable law, be inconsistent with the Servicing Standard, require or cause the Special Servicer to violate provisions of this ~~Agreement or the REMIC Provisions~~Agreement, require or cause the Special Servicer to violate the terms of any Mortgage Loan or ~~Serviced Loan Combination, any related Loan Documents, any related Co~~the Split-~~Lender Agreement or any intercreditor agreement~~Loan, expose any Certificateholder, the Trust Fund, any Mortgage Loan Seller (other than with respect to enforcing the rights and remedies against such Mortgage Loan Seller pursuant to this Agreement or the related Mortgage Loan Purchase Agreement with respect to any Material Defect) Certificateholder or any party to this Agreement or their ~~respective~~ Affiliates, officers, ~~directors, employees~~ directors or agents to any claim, suit or liability, cause ~~any~~ either Trust REMIC to fail to qualify as a ~~REMIC or the Grantor Trust to fail to qualify as a grantor trust for federal income tax purposes~~REMIC, result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC ~~Provisions,~~ Provisions or materially expand the scope of any Special Servicer’s responsibilities under this ~~Agreement or any Co-Lender~~ Agreement, or cause the Special Servicer to act, or fail to act, in a manner that in the reasonable judgment of the Special Servicer is not in the best interests of the Certificateholders and/or the Serviced Companion Loan Holders. In addition, the Special Servicer is under no obligation to act upon any recommendation of the Operating Advisor.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CCRE Commercial Mortgage Securities, L.P.)

Common use of Appointment of Special Servicer; Asset Status Reports Clause in Contracts