Certain Matters Regarding the Loan Combinations. (a) With respect to Loan Combinations, except for those duties to be performed by, and notices to be furnished by, the Trustee under this Agreement, the Master Servicer or the Special Servicer, as applicable, shall perform such duties and furnish such notices, reports and information on behalf of the Trust Fund as may be the obligation of the Trust under the related Intercreditor Agreement. (b) The Master Servicer shall maintain a register (the “Companion Loan Holder Register”) on which the Master Servicer shall record the names and addresses of the Companion Loan Holders and wire transfer instructions for such Companion Loan Holders from time to time, to the extent such information is provided in writing to the Master Servicer by the related Companion Loan Holder. Upon the transfer of any Companion Loan, each subsequent Companion Loan Holder has agreed to inform the Master Servicer of its name and address and of any transfer thereof by delivering a copy of an assignment and assumption agreement pursuant to the related Intercreditor Agreement. Additionally, each Companion Loan Holder shall inform the Master Servicer of its taxpayer identification number and wiring instructions. The name, address, tax identification number, and wiring instructions of each initial Companion Loan Holder as of the Closing Date is set forth on Schedule X hereto. The Master Servicer shall be entitled to conclusively rely upon the information set forth on Schedule X hereto or delivered by any Companion Loan Holder until it receives written notice of transfer or of any change in information. Upon receipt of a written request from any party hereto, the Master Servicer shall provide a current list of Companion Loan Holders, together with contact information for the Companion Loan Holders. In no event shall the Master Servicer be obligated to pay any party the amounts payable to a Companion Loan Holders hereunder other than the Person listed as the applicable Companion Loan Holders on the Companion Loan Holder Register. In the event that a Companion Loan Holder transfers the related Companion Loan without notice to the Master Servicer, the Master Servicer shall have no liability whatsoever for any misdirected payment on such Companion Loan and shall have no obligation to recover and redirect such payment. The Master Servicer shall promptly provide the names and addresses of any Companion Loan Holders to any party hereto, and any such party or successor may, without further investigation, conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such names and addresses. (c) With respect to any Loan Combination, the Subordinate Class Representative shall be entitled to exercise the consent rights to the extent set forth in the applicable Intercreditor Agreement, in accordance with the terms of the related Intercreditor Agreement and this Agreement. (d) The Special Servicer (if any Companion Loan is a Specially Serviced Mortgage Loan or has become an REO Mortgage Loan) or the Master Servicer (with respect to any Companion Loan that is not a Specially Serviced Mortgage Loan), as applicable, shall take all actions relating to the servicing and/or administration of, and the preparation and delivery of reports and other information with respect to, the Loan Combination related to any Companion Loan or any related REO Property required to be performed by the holder of the related Mortgage Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the related Intercreditor Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of a Companion Loan: (i) none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and (ii) the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the related Companion Loan Holder(s) to the extent required by the related Intercreditor Agreement. If any Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust” (within the meaning of the Grantor Trust Provisions), then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust. The parties hereto acknowledge that a Companion Loan Holder shall not (1) owe any fiduciary duty to the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the related Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that a Companion Loan Holder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the interests of the Certificateholders and shall be deemed to have agreed to take no action against a Companion Loan Holder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates. The parties hereto recognize and acknowledge the respective rights of each Companion Loan Holder under the related Intercreditor Agreement. Each of the rights of a Companion Loan Holder under or contemplated by this Section 3.26(d) may be exercisable by a designee thereof on its behalf; provided that the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee are provided with written notice by the related Companion Loan Holder of such designation (upon which such party may conclusively rely) and the contact details of the designee. If any Person purchases the related Mortgage Loan as a Defaulted Mortgage Loan pursuant to Section 3.18, then (subject to the related Intercreditor Agreement) the Person effecting the purchase must also pay and/or reimburse to the parties hereto the respective amounts then currently due and owing to them hereunder with respect to the related Companion Loan(s) that, pursuant to this Agreement, would not otherwise have been payable out of the applicable purchase price and/or any other amounts payable in connection with such purchase (or if payable out of such purchase price and/or other amounts, remain unpaid after such application) and that, pursuant to the related Intercreditor Agreement, would otherwise have been payable out of future collections on such Companion Loan. Notwithstanding anything herein to the contrary, any such purchase shall be subject to such reimbursements. Any reference to servicing any of the Mortgage Loans in accordance with any of the related Mortgage Loan Documents (including the related Mortgage Note and Mortgage) shall also mean, in the case of a Loan Combination, in accordance with the related Intercreditor Agreement. For purposes of exercising any rights that the holder of the Mortgage Note for any Mortgage Loan in a Loan Combination may have under the related Intercreditor Agreement, the Subordinate Class Representative shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Intercreditor Agreement to effect such designation. (e) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall provide each Companion Loan Holder and, if applicable, related Non-Directing Holder (or its designee or representative) to the extent required hereunder to be provided to Certificateholders or to the Subordinate Class Representative, within the same time frame it is required to provide such information and materials to the Certificateholders or the Subordinate Class Representative, as applicable, hereunder (1) with copies of each financial statement received by the Master Servicer pursuant to the terms of the related Mortgage Loan Documents, (2) with copies of any notice of default sent to the Borrower and (3) subject to the terms of the related Mortgage Loan Documents, copies of any other documents relating to the Loan Combination, including, without limitation, property inspection reports, loan servicing statements, Borrower requests, asset status reports, any other information delivered by the Master Servicer to the Subordinate Class Representative and copies of any other notice, information or report that it is required to provide to the Subordinate Class Representative pursuant to this Agreement with respect to any “major decisions” or the implementation of any recommended actions outlined in an Asset Status Report relating to such Loan Combination. Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means. (f) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall: (i) consult with the related Companion Loan Holder (or its designee or representative) on a strictly non-binding basis, to the extent that such Companion Loan Holder (or its designee or representative) requests consultation with respect to any “major decision” set forth in the related Intercreditor Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Loan Combination, and to consider alternative actions recommended by such Companion Loan Holder (or its designee or representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the related Companion Loan Holder (or its designee or representative) of written notice of a proposed action, together with copies of the related notice, information or report, the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the applicable Companion Loan Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the foregoing non-binding consultation rights of the Companion Loan Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan Holder. In no event shall the Master Servicer or the Special Servicer be obligated at any time to follow or take any alternative actions recommended by the Companion Loan Holder; and (ii) in addition to the foregoing non-binding consultation rights, the Companion Loan Holder shall have the right to annual meetings with the Master Servicer or the Special Servicer at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related Loan Combination are discussed.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C7), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C7)

Certain Matters Regarding the Loan Combinations. (a) ~~With respect to Loan Combinations~~The parties hereto, ~~except for those duties to be performed by~~the Controlling Class Representative by its acceptance of its rights and obligations set forth herein, and ~~notices~~ each Certificateholder by its acceptance of a Certificate, hereby acknowledge the right of the Non-Trust Noteholders, upon the occurrence of certain specified events under the related Loan Combination Intercreditor Agreement, to ~~be furnished by~~purchase the related Trust Mortgage Loan that is a part of the related Loan Combination from the Trust, subject to the terms, conditions and limitations set forth in, and at the price specified in, the ~~Trustee under this~~ related Loan Combination Intercreditor Agreement, and the parties hereto agree to take such actions contemplated by the related Loan Combination Intercreditor Agreement as may be expressly contemplated thereby, or otherwise reasonably necessary, to allow a Non-Trust Noteholder to purchase the related Trust Mortgage Loan from the Trust. (b) In connection with any purchase of a Trust Mortgage Loan that is part of a Loan Combination by a related Non-Trust Noteholder pursuant to the related Loan Combination Intercreditor Agreement, the Master Servicer or the Special ~~Servicer~~Servicer shall (i) if it receives the applicable purchase price provided for in the related Loan Combination Intercreditor Agreement and/or any other amounts payable in connection with the purchase, deposit same, or remit same to the Master Servicer for deposit, as applicable, ~~shall perform such duties and furnish such notices, reports and information on behalf of~~ into the ~~Trust Fund as may be the obligation of the Trust under~~ Collection Account or the related ~~Intercreditor Agreement.~~ Loan Combination Custodial Account, as applicable, and so notify the Trustee; and (bii) ~~The Master Servicer shall maintain a register (~~deliver the “Companion Loan Holder Register”) on which the Master Servicer shall record the names and addresses of the Companion Loan Holders and wire transfer instructions for such Companion Loan Holders from time to time, related Servicing File to the ~~extent such information is provided in writing to~~ Person effecting the ~~Master Servicer by the related Companion Loan Holder~~purchase or its designee. ~~Upon the transfer of any Companion Loan~~In addition, ~~each subsequent Companion Loan Holder has agreed to inform the Master Servicer of~~ upon its name and address and of any transfer thereof by delivering a copy of an assignment and assumption agreement pursuant to the related Intercreditor Agreement. Additionally, each Companion Loan Holder shall inform the Master Servicer of its taxpayer identification number and wiring instructions. The name, address, tax identification number, and wiring instructions of each initial Companion Loan Holder as of the Closing Date is set forth on Schedule X hereto. The Master Servicer shall be entitled to conclusively rely upon the information set forth on Schedule X hereto or delivered by any Companion Loan Holder until it receives written notice of transfer or of any change in information. Upon receipt of a ~~written request~~ Request for Release from any party hereto, the Master Servicer shall provide a current list of Companion Loan Holders, together with contact information for the Companion Loan Holders. In no event shall the Master Servicer be obligated to pay any party the amounts payable to a Companion Loan Holders hereunder other than the Person listed as the applicable Companion Loan Holders on the Companion Loan Holder Register. In the event that a Companion Loan Holder transfers the related Companion Loan without notice to the Master Servicer, the ~~Master Servicer~~ Trustee shall: (i) deliver the related Mortgage File to the Person effecting the purchase or its designee; and (ii) execute and deliver such endorsements, assignments and instruments of transfer as shall ~~have no liability whatsoever for any misdirected payment on such Companion~~ be provided to it and are reasonably necessary to vest ownership of the subject Trust Mortgage Loan ~~and shall have no obligation to recover and redirect such payment. The Master Servicer shall promptly provide~~ in the ~~names and addresses of any Companion Loan Holders to any party hereto, and any such party or successor may~~appropriate purchaser, without ~~further investigation~~recourse, ~~conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such names and addresses~~representations or warranties. (c) With respect to any Loan Combination, the Subordinate Class Representative shall be entitled to exercise the consent rights to the extent set forth in the applicable Intercreditor Agreement, in accordance with the terms of the related Intercreditor Agreement and this Agreement. (d) The Special Servicer (if any Companion Loan is a Specially Serviced Mortgage Loan or has become an REO Mortgage Loan) or the Master Servicer (with respect to any Companion Loan that is not a Specially Serviced Mortgage Loan), as applicable, shall take all actions relating to the servicing and/or administration of, and the preparation and delivery of reports and other information with respect to, the Loan Combination related to any Companion Loan or any related REO Property required to be performed by the holder of the related Mortgage Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the related Intercreditor Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of a Companion Loan: (i) none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and (ii) the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the related Companion Loan Holder(s) to the extent required by the related Intercreditor Agreement. If any Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust” (within the meaning of the Grantor Trust Provisions), then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust. The parties hereto acknowledge that ~~a Companion Loan Holder~~ each Non-Trust Noteholder shall not (1) owe any fiduciary duty to the Trustee, the ~~Certificate Administrator, the~~ Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the related Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that a Companion Loan Holder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the interests of the Certificateholders and shall be deemed to have agreed to take no action against a Companion Loan Holder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates. The parties hereto recognize and acknowledge the respective rights of each Companion Loan Holder under the related Intercreditor Agreement. Each of the rights of a Companion Loan Holder under or contemplated by this Section 3.26(d) may be exercisable by a designee thereof on its behalf; provided that the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee are provided with written notice by the related Companion Loan Holder of such designation (upon which such party may conclusively rely) and the contact details of the designee. If any Person purchases the related Mortgage Loan as a Defaulted Mortgage Loan pursuant to Section 3.18, then (subject to the related Intercreditor Agreement) the Person effecting the purchase must also pay and/or reimburse to the parties hereto the respective amounts then currently due and owing to them hereunder with respect to the related Companion Loan(s) that, pursuant to this Agreement, would not otherwise have been payable out of the applicable purchase price and/or any other amounts payable in connection with such purchase (or if payable out of such purchase price and/or other amounts, remain unpaid after such application) and that, pursuant to the related Intercreditor Agreement, would otherwise have been payable out of future collections on such Companion Loan. Notwithstanding anything herein to the contrary, any such purchase shall be subject to such reimbursements. Any reference to servicing any of the Mortgage Loans in accordance with any of the related Mortgage Loan Documents (including the related Mortgage Note and Mortgage) shall also mean, in the case of a Loan Combination, in accordance with the related Intercreditor Agreement. For purposes of exercising any rights that the holder of the Mortgage Note for any Mortgage Loan in a Loan Combination may have under the related Intercreditor Agreement, the Subordinate Class Representative shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Intercreditor Agreement to effect such designation. (e) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall provide each Companion Loan Holder and, if applicable, related Non-Directing Holder (or its designee or representative) to the extent required hereunder to be provided to Certificateholders or to the Subordinate Class Representative, within the same time frame it is required to provide such information and materials to the Certificateholders or the Subordinate Class Representative, as applicable, hereunder (1) with copies of each financial statement received by the Master Servicer pursuant to the terms of the related Mortgage Loan Documents, (2) with copies of any notice of default sent to the Borrower and (3) subject to the terms of the related Mortgage Loan Documents, copies of any other documents relating to the Loan Combination, including, without limitation, property inspection reports, loan servicing statements, Borrower requests, asset status reports, any other information delivered by the Master Servicer to the Subordinate Class Representative and copies of any other notice, information or report that it is required to provide to the Subordinate Class Representative pursuant to this Agreement with respect to any “major decisions” or the implementation of any recommended actions outlined in an Asset Status Report relating to such Loan Combination. Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means. (f) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall: (i) consult with the related Companion Loan Holder (or its designee or representative) on a strictly non-binding basis, to the extent that such Companion Loan Holder (or its designee or representative) requests consultation with respect to any “major decision” set forth in the related Intercreditor Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Loan Combination, and to consider alternative actions recommended by such Companion Loan Holder (or its designee or representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the related Companion Loan Holder (or its designee or representative) of written notice of a proposed action, together with copies of the related notice, information or report, the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the applicable Companion Loan Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the foregoing non-binding consultation rights of the Companion Loan Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan Holder. In no event shall the Master Servicer or the Special Servicer be obligated at any time to follow or take any alternative actions recommended by the Companion Loan Holder; and (ii) in addition to the foregoing non-binding consultation rights, the Companion Loan Holder shall have the right to annual meetings with the Master Servicer or the Special Servicer at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related Loan Combination are discussed.or

Appears in 2 contracts

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

Certain Matters Regarding the Loan Combinations. (a) ~~With respect to Loan Combinations~~The parties hereto, ~~except for those duties to be performed by~~the Controlling Class Representative by its acceptance of its rights and obligations set forth herein, and ~~notices~~ each Certificateholder by its acceptance of a Certificate, hereby acknowledge the right of the Non-Trust Noteholders, upon the occurrence of certain specified events under the related Loan Combination Intercreditor Agreement, to ~~be furnished by~~purchase the related Trust Mortgage Loan that is a part of the related Loan Combination from the Trust, subject to the terms, conditions and limitations set forth in, and at the price specified in, the ~~Trustee under this~~ related Loan Combination Intercreditor Agreement, and the parties hereto agree to take such actions contemplated by the related Loan Combination Intercreditor Agreement as may be expressly contemplated thereby, or otherwise reasonably necessary, to allow a Non-Trust Noteholder to purchase the related Trust Mortgage Loan from the Trust. (b) In connection with any purchase of a Trust Mortgage Loan that is part of a Loan Combination by a related Non-Trust Noteholder pursuant to the related Loan Combination Intercreditor Agreement, the applicable Master Servicer or the Special ~~Servicer~~Servicer shall (i) if it receives the applicable purchase price provided for in the related Loan Combination Intercreditor Agreement and/or any other amounts payable in connection with the purchase, deposit same, or remit same to such Master Servicer for deposit, as applicable, ~~shall perform such duties and furnish such notices, reports and information on behalf of~~ into the ~~Trust Fund as may be the obligation of the Trust under~~ applicable Collection Account or the related ~~Intercreditor Agreement.~~ Loan Combination Custodial Account, as applicable, and so notify the Trustee; and (bii) ~~The Master Servicer shall maintain a register (~~deliver the “Companion Loan Holder Register”) on which the Master Servicer shall record the names and addresses of the Companion Loan Holders and wire transfer instructions for such Companion Loan Holders from time to time, related Servicing File to the ~~extent such information is provided in writing to~~ Person effecting the ~~Master Servicer by the related Companion Loan Holder~~purchase or its designee. ~~Upon the transfer of any Companion Loan~~In addition, ~~each subsequent Companion Loan Holder has agreed to inform the Master Servicer of~~ upon its name and address and of any transfer thereof by delivering a copy of an assignment and assumption agreement pursuant to the related Intercreditor Agreement. Additionally, each Companion Loan Holder shall inform the Master Servicer of its taxpayer identification number and wiring instructions. The name, address, tax identification number, and wiring instructions of each initial Companion Loan Holder as of the Closing Date is set forth on Schedule X hereto. The Master Servicer shall be entitled to conclusively rely upon the information set forth on Schedule X hereto or delivered by any Companion Loan Holder until it receives written notice of transfer or of any change in information. Upon receipt of a ~~written request~~ Request for Release from any party hereto, the Master Servicer shall provide a current list of Companion Loan Holders, together with contact information for the Companion Loan Holders. In no event shall the Master Servicer be obligated to pay any party the amounts payable to a Companion Loan Holders hereunder other than the Person listed as the applicable ~~Companion Loan Holders on the Companion Loan Holder Register. In the event that a Companion Loan Holder transfers the related Companion Loan without notice to the~~ Master Servicer, the ~~Master Servicer~~ Trustee shall: (i) deliver the related Mortgage File to the Person effecting the purchase or its designee; and (ii) execute and deliver such endorsements, assignments and instruments of transfer as shall ~~have no liability whatsoever for any misdirected payment on such Companion~~ be provided to it and are reasonably necessary to vest ownership of the subject Trust Mortgage Loan ~~and shall have no obligation to recover and redirect such payment. The Master Servicer shall promptly provide~~ in the ~~names and addresses of any Companion Loan Holders to any party hereto, and any such party or successor may~~appropriate purchaser, without ~~further investigation~~recourse, ~~conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such names and addresses~~representations or warranties. (c) With respect to any Loan Combination, the Subordinate Class Representative shall be entitled to exercise the consent rights to the extent set forth in the applicable Intercreditor Agreement, in accordance with the terms of the related Intercreditor Agreement and this Agreement. (d) The Special Servicer (if any Companion Loan is a Specially Serviced Mortgage Loan or has become an REO Mortgage Loan) or the Master Servicer (with respect to any Companion Loan that is not a Specially Serviced Mortgage Loan), as applicable, shall take all actions relating to the servicing and/or administration of, and the preparation and delivery of reports and other information with respect to, the Loan Combination related to any Companion Loan or any related REO Property required to be performed by the holder of the related Mortgage Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the related Intercreditor Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of a Companion Loan: (i) none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and (ii) the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the related Companion Loan Holder(s) to the extent required by the related Intercreditor Agreement. If any Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust” (within the meaning of the Grantor Trust Provisions), then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust. The parties hereto acknowledge that ~~a Companion Loan Holder~~ each Non-Trust Noteholder shall not (1) owe any fiduciary duty to the Trustee, the ~~Certificate Administrator, the~~ applicable Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the related Loan Combination Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that ~~a Companion Loan Holder~~ each Non-Trust Noteholder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the ~~interests~~ interest of the Certificateholders and shall be deemed to have agreed to take no action against a ~~Companion Loan Holder~~ Non-Trust Noteholder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates~~. The parties hereto recognize and acknowledge~~ . (d) To the respective rights of each Companion Loan Holder under the related Intercreditor Agreement. Each of the rights of a Companion Loan Holder under or contemplated by this Section 3.26(d) may be exercisable by a designee thereof on its behalf; extent not otherwise expressly provided ~~that the Master Servicer~~for herein, the Special ~~Servicer, the Certificate Administrator and the Trustee are provided with written notice by the related Companion~~ Servicer shall provide to each B-Note Loan Holder ~~of such designation (upon which such party may conclusively rely) and the contact details of the~~ or its designee~~. If any Person purchases the related Mortgage Loan as a Defaulted Mortgage Loan pursuant to Section 3.18~~, then (subject to the related Intercreditor Agreement) the Person effecting the purchase must also pay and/or reimburse to the parties hereto the respective amounts then currently due and owing to them hereunder with respect to the related ~~Companion Loan(s) that~~B-Note Non-Trust Loan or any related Loan Combination REO Property, ~~pursuant~~ subject to ~~this Agreement~~the same conditions and restrictions on the distribution of information as apply with respect to reports, ~~would not otherwise have been payable out of~~ documents and other information with respect to the ~~applicable purchase price and/or any~~ Trust Mortgage Loans, the same reports, documents and other ~~amounts payable in connection~~ information that the Special Servicer provides to the Trustee with ~~such purchase (or if payable out of such purchase price and/or other amounts, remain unpaid after such application) and that, pursuant~~ respect to the related ~~Intercreditor Agreement~~A-Note Trust Mortgage Loan or the related Loan Combination REO Property, ~~would otherwise have been payable out of future collections~~ and on ~~such Companion Loan~~a concurrent basis. ~~Notwithstanding anything herein~~ The Trustee and the Special Servicer shall each provide or make available to each B-Note Loan Holder or its designee, with respect to the ~~contrary~~related B-Note Non-Trust Loan or any related Loan Combination REO Property, ~~any such purchase shall be subject to such reimbursements. Any reference to servicing any of~~ the ~~Mortgage Loans in accordance with any of the related Mortgage Loan Documents (including the related Mortgage Note~~ same reports, documents and ~~Mortgage) shall also mean, in the case of a Loan Combination, in accordance with the related Intercreditor Agreement. For purposes of exercising any rights~~ other information that the ~~holder of the Mortgage Note for any Mortgage Loan in a Loan Combination may have under the related Intercreditor Agreement~~Trustee, the Subordinate Class Representative shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Intercreditor Agreement to effect such designation. (e) With respect to each Loan Combination, the applicable Master Servicer or the Special Servicer, as ~~applicable~~the case may be, ~~shall provide each Companion Loan Holder and, if applicable, related Non-Directing Holder (or its designee or representative)~~ provides to the ~~extent required hereunder to be provided to Certificateholders or to the Subordinate~~ Controlling Class Representative, ~~within the same time frame it is required to provide such information and materials~~ in so far as they relate to the ~~Certificateholders~~ related A-Note Trust Mortgage Loan or the ~~Subordinate Class Representative~~related Loan Combination REO Property, as applicable, hereunder (1) with copies of each financial statement received by the Master Servicer pursuant to the terms of the related Mortgage Loan Documents, (2) with copies of any notice of default sent to the Borrower and (3) subject to the terms of the related Mortgage Loan Documents, copies of any other documents relating to the Loan Combination, including, without limitation, property inspection reports, loan servicing statements, Borrower requests, asset status reports, any other information delivered by the Master Servicer to the Subordinate Class Representative and copies of any other notice, information or report that it is required to provide to the Subordinate Class Representative pursuant to this Agreement with respect to any “major decisions” or the implementation of any recommended actions outlined in an Asset Status Report relating to such Loan Combinationon a concurrent basis. ~~Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means. (f) With respect to each Loan Combination~~In addition, the Trustee, the applicable Master Servicer or the Special Servicer, as ~~applicable~~the case may be, shall~~: (i) consult with the related Companion~~ , upon receipt of a written request, provide to a B-Note Loan Holder (or its designee (at such holder's cost) all other documents and information that such holder or ~~representative) on a strictly non~~its designee may reasonably request with respect to the related B-~~binding basis~~Note Non-Trust Loan or any Loan Combination REO Property, to the extent ~~that~~ such ~~Companion Loan Holder (or~~ documents and information are in its designee or representative) requests consultation with respect to any “major decision” set forth in the related Intercreditor Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Loan Combination, and to consider alternative actions recommended by such Companion Loan Holder (or its designee or representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the related Companion Loan Holder (or its designee or representative) of written notice of a proposed action, together with copies of the related notice, information or report, the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the applicable Companion Loan Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto)possession. Notwithstanding the ~~foregoing non-binding consultation rights~~ foregoing, none of the Companion Loan Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan Holder. In no event shall the Master Servicer Trustee or the Special Servicer shall be ~~obligated at~~ required to deliver to any ~~time~~ B-Note Loan Holder or its designee any particular report, document or other information pursuant to ~~follow or take any alternative actions recommended by the Companion Loan Holder; and (ii~~this Section 3.28(e) ~~in addition~~ if and to the ~~foregoing non~~extent that (but only if and to the extent that) such particular report, document or other information is otherwise delivered to such B-~~binding consultation rights, the Companion~~ Note Loan Holder ~~shall have~~ within the ~~right~~ same time period contemplated by this Section 3.28(e) pursuant to ~~annual meetings with the Master Servicer or the Special Servicer at the offices~~ any other section of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related Loan Combination are discussedthis Agreement.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-2), Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-4)

Certain Matters Regarding the Loan Combinations. (a) ~~With respect to Loan Combinations, except for those duties to be performed by, and notices to be furnished by,~~ In the ~~Trustee under this Agreement, the Master Servicer or~~ event the Special Servicer, ~~as applicable~~in connection with a modification, ~~shall perform~~ waiver or amendment in respect of a Trust Mortgage Loan that is part of a Serviced Loan Combination, modifies, waives or amends the terms thereof such ~~duties and furnish such notices~~that (i) the Stated Principal Balance is decreased, ~~reports and information on behalf~~ (ii) the Mortgage Rate is reduced, (iii) payments of interest or principal are waived, reduced or deferred or (iv) any other adjustment is made to any of the ~~Trust Fund~~ terms of such Mortgage Loan, all payments made in respect of such Mortgage Loan shall be applied as ~~may be~~ though such modification, waiver or amendment did not occur, with the ~~obligation~~ payment terms of such Mortgage Loan remaining the ~~Trust under~~ same as they are on the related Cut-Off Date, and the related Non-Trust Loans that are junior thereto shall bear (to the extent possible) the full economic effect of all waivers, reductions or deferrals of amounts due on such Trust Mortgage Loan attributable to such modification, waiver or amendment, in each case only to the extent permitted by the related Loan Combination Intercreditor Agreement. (b) The ~~Master Servicer shall maintain~~ parties hereto, the Controlling Class Representative by its acceptance of its rights and obligations set forth herein, and each Certificateholder by its acceptance of a ~~register (~~Certificate, hereby acknowledge the ~~“Companion~~ right of an applicable Non-Trust Noteholder under a Serviced Loan ~~Holder Register”) on which~~ Combination, upon the ~~Master Servicer shall record~~ occurrence of certain specified events under the ~~names and addresses~~ related Loan Combination Intercreditor Agreement, to purchase the related Trust Mortgage Loan that is a part of the ~~Companion~~ related Loan ~~Holders and wire transfer instructions for such Companion Loan Holders~~ Combination from ~~time to time~~the Trust, subject to the ~~extent~~ terms, conditions and limitations set forth in, and at the price specified in, the related Loan Combination Intercreditor Agreement, and the parties hereto agree to take such ~~information is provided in writing to the Master Servicer~~ actions contemplated by the related ~~Companion~~ Loan ~~Holder. Upon the transfer of any Companion Loan~~Combination Intercreditor Agreement as may be expressly contemplated thereby, ~~each subsequent Companion Loan Holder has agreed~~ or otherwise reasonably necessary, to ~~inform the Master Servicer of its name and address and of any transfer thereof by delivering~~ allow a ~~copy of an assignment and assumption agreement pursuant~~ Non-Trust Noteholder to purchase the related ~~Intercreditor Agreement. Additionally, each Companion~~ Trust Mortgage Loan ~~Holder shall inform~~ from the Master Servicer of its taxpayer identification number and wiring instructions. The name, address, tax identification number, and wiring instructions of each initial Companion Loan Holder as of the Closing Date is set forth on Schedule X hereto. The Master Servicer shall be entitled to conclusively rely upon the information set forth on Schedule X hereto or delivered by any Companion Loan Holder until it receives written notice of transfer or of any change in information. Upon receipt of a written request from any party hereto, the Master Servicer shall provide a current list of Companion Loan Holders, together with contact information for the Companion Loan Holders. In no event shall the Master Servicer be obligated to pay any party the amounts payable to a Companion Loan Holders hereunder other than the Person listed as the applicable Companion Loan Holders on the Companion Loan Holder Register. In the event that a Companion Loan Holder transfers the related Companion Loan without notice to the Master Servicer, the Master Servicer shall have no liability whatsoever for any misdirected payment on such Companion Loan and shall have no obligation to recover and redirect such payment. The Master Servicer shall promptly provide the names and addresses of any Companion Loan Holders to any party hereto, and any such party or successor may, without further investigation, conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such names and addressesTrust. (c) ~~With respect to~~ In connection with any purchase of a Trust Mortgage Loan ~~Combination, the Subordinate Class Representative shall be entitled to exercise the consent rights~~ that is part of a Serviced Loan Combination by a related Non-Trust Noteholder pursuant to the ~~extent set forth in the applicable~~ related Loan Combination Intercreditor Agreement, the applicable Master Servicer or the Special Servicer shall (i) if it receives the applicable purchase price provided for in ~~accordance~~ the related Loan Combination Intercreditor Agreement and/or any other amounts payable in connection with the ~~terms~~ purchase, deposit same, or remit same to such Master Servicer for deposit, as applicable, into the applicable Collection Account or the related Loan Combination Custodial Account, as applicable; and (ii) deliver the related Servicing File to the Person effecting the purchase or its designee. In addition, upon its receipt of a Request for Release from the applicable Master Servicer, the Custodian shall: (i) deliver the related Mortgage File to the Person effecting the purchase or its designee; and (ii) execute and deliver such endorsements, assignments and instruments of transfer as shall be provided to it and are reasonably necessary to vest ownership of the ~~related Intercreditor Agreement and this Agreement~~subject Trust Mortgage Loan in the appropriate purchaser, without recourse, representations or warranties. (d) The Special Servicer (if any Companion Loan is a Specially Serviced Mortgage Loan or has become an REO Mortgage Loan) or the Master Servicer (with respect to any Companion Loan that is not a Specially Serviced Mortgage Loan), as applicable, shall take all actions relating to the servicing and/or administration of, and the preparation and delivery of reports and other information with respect to, the Loan Combination related to any Companion Loan or any related REO Property required to be performed by the holder of the related Mortgage Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the related Intercreditor Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of a Companion Loan: (i) none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and (ii) the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the related Companion Loan Holder(s) to the extent required by the related Intercreditor Agreement. If any Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust” (within the meaning of the Grantor Trust Provisions), then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust. The parties hereto acknowledge that ~~a Companion Loan Holder~~ each Non-Trust Noteholder shall not (1) owe any fiduciary duty to the Trustee, the ~~Certificate Administrator, the~~ applicable Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the related Loan Combination Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that ~~a Companion Loan Holder~~ each Non-Trust Noteholder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the ~~interests~~ interest of the Certificateholders and shall be deemed to have agreed to take no action against a ~~Companion Loan Holder~~ Non-Trust Noteholder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates. . (e) The parties ~~hereto recognize~~ hereto, the Controlling Class Representative by its acceptance of its rights and obligations set forth herein, and each Certificateholder by its acceptance of a Certificate, also hereby acknowledge the ~~respective rights of each Companion Loan Holder under the related Intercreditor Agreement. Each~~ right of the ~~rights~~ Non-Trust Noteholder (if the Non-Trust Noteholder is a Controlling Party) with respect to each of ~~a Companion~~ the Serviced Loan Holder under or contemplated by this Section 3.26(d) may be exercisable by a designee thereof on its behalf; provided that the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee are provided with written notice Combinations to cure certain events of default by the related Companion Loan Holder of such designation (upon which such party may conclusively rely) and the contact details of the designee. If any Person purchases the related Mortgage Loan as a Defaulted Mortgage Loan pursuant to Section 3.18, then (subject to the related Intercreditor Agreement) the Person effecting the purchase must also pay and/or reimburse to the parties hereto the respective amounts then currently due and owing to them hereunder Mortgagor with respect to the related ~~Companion Loan(s) that, pursuant~~ Serviced Loan Combination and to ~~this Agreement, would not otherwise have been payable out of the applicable purchase price and/or~~ be reimbursed for any ~~other~~ amounts ~~payable~~ advanced in connection with any such ~~purchase~~ cure, in each case pursuant to and subject to the terms, conditions and limitations set forth in the related Loan Combination Intercreditor Agreement. The Trustee, the applicable Master Servicer and the Special Servicer hereby agree, as provided in and subject to the terms, conditions and limitations set forth in the related Loan Combination Intercreditor Agreement, not to treat any such default by the subject Mortgagor that is so cured by a Non-Trust Noteholder as a default for the purposes specified in the related Loan Combination Intercreditor Agreement. (f) To the extent not otherwise expressly provided for herein, the Special Servicer shall provide to each Non-Trust Noteholder (other than any Non-Trust Noteholder that is an Affiliate of the related Mortgagor) or ~~if payable out of such purchase price and/or other amounts~~its designee, ~~remain unpaid after such application) and that, pursuant~~ with respect to the related ~~Intercreditor Agreement~~Non-Trust Loan or any related Loan Combination REO Property related to a Serviced Loan Combination, ~~would otherwise have been payable out of future collections on such Companion Loan. Notwithstanding anything herein~~ subject to the ~~contrary~~same conditions and restrictions on the distribution of information as apply with respect to reports, documents and other information with respect to the Trust Mortgage Loans, the same reports, documents and other information that the Special Servicer provides to the Trustee with respect to the related Trust Mortgage Loan or the related Loan Combination REO Property related to a Serviced Loan Combination, and on a concurrent basis. The Trustee and the Special Servicer shall each provide or make available to each Non-Trust Noteholder (other than any ~~such purchase shall be subject to such reimbursements. Any reference to servicing any of the Mortgage Loans in accordance with any~~ Non-Trust Noteholder that is an Affiliate of the related ~~Mortgage Loan Documents (including~~ Mortgagor) or its designee, with respect to the related ~~Mortgage Note and Mortgage) shall also mean, in the case of a~~ Non-Trust Loan ~~Combination, in accordance with the~~ or any related ~~Intercreditor Agreement. For purposes of exercising any rights that the holder of the Mortgage Note for any Mortgage Loan in a~~ Loan Combination ~~may have under the~~ REO Property related Intercreditor Agreement, the Subordinate Class Representative shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Intercreditor Agreement to ~~effect such designation. (e) With respect to each~~ a Serviced Loan Combination, the same reports, documents and other information that the Trustee, the applicable Master Servicer or the Special Servicer, as ~~applicable~~the case may be, ~~shall provide each Companion Loan Holder and, if applicable, related Non-Directing Holder (or its designee or representative)~~ provides to the ~~extent required hereunder to be provided to Certificateholders or to the Subordinate~~ Controlling Class Representative, ~~within the same time frame it is required to provide such information and materials~~ in so far as they relate to the ~~Certificateholders~~ related Trust Mortgage Loan or the ~~Subordinate Class Representative, as applicable, hereunder (1) with copies of each financial statement received by the Master Servicer pursuant~~ related Loan Combination REO Property related to the terms of the related Mortgage Loan Documents, (2) with copies of any notice of default sent to the Borrower and (3) subject to the terms of the related Mortgage Loan Documents, copies of any other documents relating to the a Serviced Loan Combination, including, without limitation, property inspection reports, loan servicing statements, Borrower requests, asset status reports, any other information delivered by the Master Servicer to the Subordinate Class Representative and copies of any other notice, information or report that it is required to provide to the Subordinate Class Representative pursuant to this Agreement with respect to any “major decisions” or the implementation of any recommended actions outlined in an Asset Status Report relating to such Loan Combinationon a concurrent basis. ~~Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means. (f) With respect to each Loan Combination~~In addition, the Trustee, the applicable Master Servicer or the Special Servicer, as applicable, shall~~: (i) consult with the related Companion Loan Holder (~~, upon receipt of a written request, provide to a Non-Trust Noteholder or its designee (at such holder's cost) all other documents and information that such holder or ~~representative) on~~ its designee may reasonably request with respect to the related Non-Trust Loan or any Loan Combination REO Property related to a ~~strictly non-binding basis~~Serviced Loan Combination, to the extent ~~that~~ such ~~Companion Loan Holder (~~documents and information are in its possession. Notwithstanding the foregoing, none of the Trustee, the Master Servicers or the Special Servicer shall be required to deliver to any Non-Trust Noteholder or its designee any particular report, document or ~~representative~~other information pursuant to this Section 3.28(f) ~~requests consultation with respect~~ if and to the extent that (but only if and to the extent that) such particular report, document or other information is otherwise delivered to such Non-Trust Noteholder pursuant to any ~~“major decision”~~ other section of this Agreement. (g) The applicable Master Servicer shall make remittances to each Non-Trust Noteholder under a Serviced Loan Combination of payments due to it within the time period set forth in the related Intercreditor Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Loan Combination, and to consider alternative actions recommended by such Companion Loan Holder (or its designee or representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the related Companion Loan Holder (or its designee or representative) of written notice of a proposed action, together with copies of the related notice, information or report, the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the applicable Companion Loan Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the foregoing non-binding consultation rights of the Companion Loan Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan Holder. In no event shall the Master Servicer or the Special Servicer be obligated at any time to follow or take any alternative actions recommended by the Companion Loan Holder; and (ii) in addition to the foregoing non-binding consultation rights, the Companion Loan Holder shall have the right to annual meetings with the Master Servicer or the Special Servicer at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related Loan Combination ~~are discussed~~Intercreditor Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2007-8)

Certain Matters Regarding the Loan Combinations. (a) ~~With respect to Loan Combinations~~The parties hereto, ~~except for those duties to be performed by~~the Controlling Class Representative by its acceptance of its rights and obligations set forth herein, and ~~notices~~ each Certificateholder by its acceptance of a Certificate, hereby acknowledge the right of the Non-Trust Noteholders, upon the occurrence of certain specified events under the related Loan Combination Intercreditor Agreement, to ~~be furnished by~~purchase the related Trust Mortgage Loan that is a part of the related Loan Combination from the Trust, subject to the terms, conditions and limitations set forth in, and at the price specified in, the ~~Trustee under this~~ related Loan Combination Intercreditor Agreement, and the parties hereto agree to take such actions contemplated by the related Loan Combination Intercreditor Agreement as may be expressly contemplated thereby, or otherwise reasonably necessary, to allow a Non-Trust Noteholder to purchase the related Trust Mortgage Loan from the Trust. (b) In connection with any purchase of a Trust Mortgage Loan that is part of a Loan Combination by a related Non-Trust Noteholder pursuant to the related Loan Combination Intercreditor Agreement, the Master Servicer or the Special ~~Servicer~~Servicer shall (i) if it receives the applicable purchase price provided for in the related Loan Combination Intercreditor Agreement and/or any other amounts payable in connection with the purchase, deposit same, or remit same to the Master Servicer for deposit, as applicable, ~~shall perform such duties and furnish such notices, reports and information on behalf of~~ into the ~~Trust Fund as may be the obligation of the Trust under~~ Collection Account or the related ~~Intercreditor Agreement.~~ Loan Combination Custodial Account, as applicable, and so notify the Trustee; and (bii) ~~The Master Servicer shall maintain a register (~~deliver the “Companion Loan Holder Register”) on which the Master Servicer shall record the names and addresses of the Companion Loan Holders and wire transfer instructions for such Companion Loan Holders from time to time, related Servicing File to the ~~extent such information is provided in writing to~~ Person effecting the ~~Master Servicer by the related Companion Loan Holder~~purchase or its designee. ~~Upon the transfer of any Companion Loan~~In addition, ~~each subsequent Companion Loan Holder has agreed to inform the Master Servicer of~~ upon its name and address and of any transfer thereof by delivering a copy of an assignment and assumption agreement pursuant to the related Intercreditor Agreement. Additionally, each Companion Loan Holder shall inform the Master Servicer of its taxpayer identification number and wiring instructions. The name, address, tax identification number, and wiring instructions of each initial Companion Loan Holder as of the Closing Date is set forth on Schedule X hereto. The Master Servicer shall be entitled to conclusively rely upon the information set forth on Schedule X hereto or delivered by any Companion Loan Holder until it receives written notice of transfer or of any change in information. Upon receipt of a ~~written request~~ Request for Release from any party hereto, the Master Servicer shall provide a current list of Companion Loan Holders, together with contact information for the Companion Loan Holders. In no event shall the Master Servicer be obligated to pay any party the amounts payable to a Companion Loan Holders hereunder other than the Person listed as the applicable Companion Loan Holders on the Companion Loan Holder Register. In the event that a Companion Loan Holder transfers the related Companion Loan without notice to the Master Servicer, the ~~Master Servicer~~ Trustee shall: (i) deliver the related Mortgage File to the Person effecting the purchase or its designee; and (ii) execute and deliver such endorsements, assignments and instruments of transfer as shall ~~have no liability whatsoever for any misdirected payment on such Companion~~ be provided to it and are reasonably necessary to vest ownership of the subject Trust Mortgage Loan ~~and shall have no obligation to recover and redirect such payment. The Master Servicer shall promptly provide~~ in the ~~names and addresses of any Companion Loan Holders to any party hereto, and any such party or successor may~~appropriate purchaser, without ~~further investigation~~recourse, ~~conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such names and addresses~~representations or warranties. (c) With respect to any Loan Combination, the Subordinate Class Representative shall be entitled to exercise the consent rights to the extent set forth in the applicable Intercreditor Agreement, in accordance with the terms of the related Intercreditor Agreement and this Agreement. (d) The Special Servicer (if any Companion Loan is a Specially Serviced Mortgage Loan or has become an REO Mortgage Loan) or the Master Servicer (with respect to any Companion Loan that is not a Specially Serviced Mortgage Loan), as applicable, shall take all actions relating to the servicing and/or administration of, and the preparation and delivery of reports and other information with respect to, the Loan Combination related to any Companion Loan or any related REO Property required to be performed by the holder of the related Mortgage Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the related Intercreditor Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of a Companion Loan: (i) none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and (ii) the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the related Companion Loan Holder(s) to the extent required by the related Intercreditor Agreement. If any Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust” (within the meaning of the Grantor Trust Provisions), then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust. The parties hereto acknowledge that ~~a Companion Loan Holder~~ each Non-Trust Noteholder shall not (1) owe any fiduciary duty to the Trustee~~, the Certificate Administrator~~, the Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the related Loan Combination Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that ~~a Companion Loan Holder~~ each Non-Trust Noteholder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the ~~interests~~ interest of the Certificateholders and shall be deemed to have agreed to take no action against a ~~Companion Loan Holder~~ Non-Trust Noteholder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates. . (d) The parties ~~hereto recognize~~ hereto, the Controlling Class Representative by its acceptance of its rights and obligations set forth herein, and each Certificateholder by its acceptance of a Certificate, also hereby acknowledge the ~~respective rights~~ right of ~~each Companion~~ the B-Note Loan Holder ~~under the related Intercreditor Agreement. Each~~ with respect to each of the ~~rights of a Companion~~ Kenwood Towne Centre B-Note Non-Trust Loan ~~Holder under or contemplated by this Section 3.26(d) may be exercisable by a designee thereof on its behalf; provided that the Master Servicer, the Special Servicer, the Certificate Administrator~~ and the ~~Trustee are provided with written notice~~ 00 Xxxxx Xxxxxx B-Note Non-Trust Loan =to cure certain events of default by the related Companion Loan Holder of such designation (upon which such party may conclusively rely) and the contact details of the designee. If any Person purchases the related Mortgage Loan as a Defaulted Mortgage Loan pursuant to Section 3.18, then (subject to the related Intercreditor Agreement) the Person effecting the purchase must also pay and/or reimburse to the parties hereto the respective amounts then currently due and owing to them hereunder Mortgagor with respect to the related ~~Companion Loan(s) that, pursuant~~ Loan Combination and to ~~this Agreement, would not otherwise have been payable out of the applicable purchase price and/or~~ be reimbursed for any ~~other~~ amounts ~~payable~~ advanced in connection with any such ~~purchase (or if payable out of such purchase price and/or other amounts~~cure, ~~remain unpaid after such application) and that,~~ in each case pursuant to and subject to the terms, conditions and limitations set forth in the related Loan Combination Intercreditor Agreement. The Trustee, the Master Servicer and the Special Servicer hereby agree, as provided in and subject to the terms, conditions and limitations set forth in the related Loan Combination Intercreditor Agreement, ~~would otherwise have been payable out of future collections on such Companion Loan. Notwithstanding anything herein~~ not to ~~the contrary,~~ treat any such ~~purchase shall be~~ default by the subject ~~to such reimbursements. Any reference to servicing any of~~ Mortgagor that is so cured by a B-Note Loan Holder as a default for the ~~Mortgage Loans~~ purposes specified in ~~accordance with any of~~ the related ~~Mortgage~~ Loan ~~Documents (including the related Mortgage Note and Mortgage) shall also mean, in the case of a Loan Combination, in accordance with the related~~ Combination Intercreditor Agreement. For purposes of exercising any rights that the holder of the Mortgage Note for any Mortgage Loan in a Loan Combination may have under the related Intercreditor Agreement, the Subordinate Class Representative shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Intercreditor Agreement to effect such designation. (e) ~~With~~ To the extent not otherwise expressly provided for herein, the Special Servicer shall provide to each B-Note Loan Holder or its designee, with respect to the related B-Note Non-Trust Loan or any related Loan Combination REO Property, subject to the same conditions and restrictions on the distribution of information as apply with respect to reports, documents and other information with respect to the Trust Mortgage Loans, the same reports, documents and other information that the Special Servicer provides to the Trustee with respect to the related A-Note Trust Mortgage Loan or the related Loan Combination REO Property, and on a concurrent basis. The Trustee and the Special Servicer shall each provide or make available to each B-Note Loan ~~Combination~~Holder or its designee, with respect to the related B-Note Non-Trust Loan or any related Loan Combination REO Property, the same reports, documents and other information that the Trustee, the Master Servicer or the Special Servicer, as ~~applicable~~the case may be, ~~shall provide each Companion Loan Holder and, if applicable, related Non-Directing Holder (or its designee or representative)~~ provides to the ~~extent required hereunder to be provided to Certificateholders or to the Subordinate~~ Controlling Class Representative, ~~within the same time frame it is required to provide such information and materials~~ in so far as they relate to the ~~Certificateholders~~ related A-Note Trust Mortgage Loan or the ~~Subordinate Class Representative~~related Loan Combination REO Property, ~~as applicable~~and on a concurrent basis. In addition, ~~hereunder (1) with copies of each financial statement received by~~ the Master Servicer pursuant to the terms of the related Mortgage Loan Documents, (2) with copies of any notice of default sent to the Borrower and (3) subject to the terms of the related Mortgage Loan Documents, copies of any other documents relating to the Loan Combination, including, without limitation, property inspection reports, loan servicing statements, Borrower requests, asset status reports, any other information delivered by the Master Servicer to the Subordinate Class Representative and copies of any other notice, information or report that it is required to provide to the Subordinate Class Representative pursuant to this Agreement with respect to any “major decisions” or the implementation of any recommended actions outlined in an Asset Status Report relating to such Loan Combination. Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means. (f) With respect to each Loan CombinationTrustee, the Master Servicer or the Special Servicer, as applicable, shall~~: (i) consult with the related Companion~~ , upon receipt of a written request, provide to a B-Note Loan Holder (or its designee (at such holder's cost) all other documents and information that such holder or ~~representative) on a strictly non~~its designee may reasonably request with respect to the related B-~~binding basis~~Note Non-Trust Loan or any Loan Combination REO Property, to the extent ~~that~~ such ~~Companion Loan Holder (or~~ documents and information are in its designee or representative) requests consultation with respect to any “major decision” set forth in the related Intercreditor Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Loan Combination, and to consider alternative actions recommended by such Companion Loan Holder (or its designee or representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the related Companion Loan Holder (or its designee or representative) of written notice of a proposed action, together with copies of the related notice, information or report, the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the applicable Companion Loan Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto)possession. Notwithstanding the ~~foregoing non-binding consultation rights~~ foregoing, none of the Companion Loan Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan Holder. In no event shall the Master Servicer Trustee or the Special Servicer shall be ~~obligated at~~ required to deliver to any ~~time~~ B-Note Loan Holder or its designee any particular report, document or other information pursuant to ~~follow or take any alternative actions recommended by the Companion Loan Holder; and (ii~~this Section 3.28(e) ~~in addition~~ if and to the ~~foregoing non~~extent that (but only if and to the extent that) such particular report, document or other information is otherwise delivered to such B-~~binding consultation rights, the Companion~~ Note Loan Holder ~~shall have~~ within the ~~right~~ same time period contemplated by this Section 3.28(e) pursuant to ~~annual meetings with the Master Servicer or the Special Servicer at the offices~~ any other section of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related Loan Combination are discussedthis Agreement.

Appears in 1 contract

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

Certain Matters Regarding the Loan Combinations. (a) ~~With respect to Loan Combinations~~The parties hereto, ~~except for those duties to be performed by~~the Controlling Class Representative by its acceptance of its rights and obligations set forth herein, and ~~notices~~ each Certificateholder by its acceptance of a Certificate, hereby acknowledge the right of the Non-Trust Noteholders, upon the occurrence of certain specified events under the related Loan Combination Intercreditor Agreement, to ~~be furnished by~~purchase the related Trust Mortgage Loan that is a part of the related Loan Combination from the Trust, subject to the terms, conditions and limitations set forth in, and at the price specified in, the ~~Trustee under this~~ related Loan Combination Intercreditor Agreement, and the parties hereto agree to take such actions contemplated by the related Loan Combination Intercreditor Agreement as may be expressly contemplated thereby, or otherwise reasonably necessary, to allow a Non-Trust Noteholder to purchase the related Trust Mortgage Loan from the Trust. (b) In connection with any purchase of a Trust Mortgage Loan that is part of a Loan Combination by a related Non-Trust Noteholder pursuant to the related Loan Combination Intercreditor Agreement, the applicable Master Servicer or the Special ~~Servicer~~Servicer shall (i) if it receives the applicable purchase price provided for in the related Loan Combination Intercreditor Agreement and/or any other amounts payable in connection with the purchase, deposit same, or remit same to such Master Servicer for deposit, as applicable, ~~shall perform such duties and furnish such notices, reports and information on behalf of~~ into the ~~Trust Fund as may be the obligation of the Trust under~~ applicable Collection Account or the related ~~Intercreditor Agreement.~~ Loan Combination Custodial Account, as applicable, and so notify the Trustee; and (bii) ~~The Master Servicer shall maintain a register (~~deliver the “Companion Loan Holder Register”) on which the Master Servicer shall record the names and addresses of the Companion Loan Holders and wire transfer instructions for such Companion Loan Holders from time to time, related Servicing File to the ~~extent such information is provided in writing to~~ Person effecting the ~~Master Servicer by the related Companion Loan Holder~~purchase or its designee. ~~Upon the transfer of any Companion Loan~~In addition, ~~each subsequent Companion Loan Holder has agreed to inform the Master Servicer of~~ upon its name and address and of any transfer thereof by delivering a copy of an assignment and assumption agreement pursuant to the related Intercreditor Agreement. Additionally, each Companion Loan Holder shall inform the Master Servicer of its taxpayer identification number and wiring instructions. The name, address, tax identification number, and wiring instructions of each initial Companion Loan Holder as of the Closing Date is set forth on Schedule X hereto. The Master Servicer shall be entitled to conclusively rely upon the information set forth on Schedule X hereto or delivered by any Companion Loan Holder until it receives written notice of transfer or of any change in information. Upon receipt of a ~~written request~~ Request for Release from any party hereto, the Master Servicer shall provide a current list of Companion Loan Holders, together with contact information for the Companion Loan Holders. In no event shall the Master Servicer be obligated to pay any party the amounts payable to a Companion Loan Holders hereunder other than the Person listed as the applicable ~~Companion Loan Holders on the Companion Loan Holder Register. In the event that a Companion Loan Holder transfers the related Companion Loan without notice to the~~ Master Servicer, the ~~Master Servicer~~ Trustee shall: (i) deliver the related Mortgage File to the Person effecting the purchase or its designee; and (ii) execute and deliver such endorsements, assignments and instruments of transfer as shall ~~have no liability whatsoever for any misdirected payment on such Companion~~ be provided to it and are reasonably necessary to vest ownership of the subject Trust Mortgage Loan ~~and shall have no obligation to recover and redirect such payment. The Master Servicer shall promptly provide~~ in the ~~names and addresses of any Companion Loan Holders to any party hereto, and any such party or successor may~~appropriate purchaser, without ~~further investigation~~recourse, ~~conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such names and addresses~~representations or warranties. (c) With respect to any Loan Combination, the Subordinate Class Representative shall be entitled to exercise the consent rights to the extent set forth in the applicable Intercreditor Agreement, in accordance with the terms of the related Intercreditor Agreement and this Agreement. (d) The Special Servicer (if any Companion Loan is a Specially Serviced Mortgage Loan or has become an REO Mortgage Loan) or the Master Servicer (with respect to any Companion Loan that is not a Specially Serviced Mortgage Loan), as applicable, shall take all actions relating to the servicing and/or administration of, and the preparation and delivery of reports and other information with respect to, the Loan Combination related to any Companion Loan or any related REO Property required to be performed by the holder of the related Mortgage Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the related Intercreditor Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of a Companion Loan: (i) none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and (ii) the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the related Companion Loan Holder(s) to the extent required by the related Intercreditor Agreement. If any Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust” (within the meaning of the Grantor Trust Provisions), then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust. The parties hereto acknowledge that ~~a Companion Loan Holder~~ each Non-Trust Noteholder shall not (1) owe any fiduciary duty to the Trustee, the ~~Certificate Administrator, the~~ applicable Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the related Loan Combination Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that ~~a Companion Loan Holder~~ each Non-Trust Noteholder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the ~~interests~~ interest of the Certificateholders and shall be deemed to have agreed to take no action against a ~~Companion Loan Holder~~ Non-Trust Noteholder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates. . (d) The parties ~~hereto recognize~~ hereto, the Controlling Class Representative by its acceptance of its rights and obligations set forth herein, and each Certificateholder by its acceptance of a Certificate, also hereby acknowledge the ~~respective rights~~ right of ~~each Companion~~ the B-Note Loan Holder ~~under the related Intercreditor Agreement. Each~~ with respect to each of the ~~rights~~ Stonestown Mall B-Note Non-Trust Loan or the Sportmart/Westwood Storage B-Note Non-Trust Loan to cure certain events of a Companion Loan Holder under or contemplated by this Section 3.26(d) may be exercisable by a designee thereof on its behalf; provided that the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee are provided with written notice default by the related Companion Loan Holder of such designation (upon which such party may conclusively rely) and the contact details of the designee. If any Person purchases the related Mortgage Loan as a Defaulted Mortgage Loan pursuant to Section 3.18, then (subject to the related Intercreditor Agreement) the Person effecting the purchase must also pay and/or reimburse to the parties hereto the respective amounts then currently due and owing to them hereunder Mortgagor with respect to the related ~~Companion Loan(s) that, pursuant~~ Loan Combination and to ~~this Agreement, would not otherwise have been payable out of the applicable purchase price and/or~~ be reimbursed for any ~~other~~ amounts ~~payable~~ advanced in connection with any such ~~purchase (or if payable out of such purchase price and/or other amounts~~cure, ~~remain unpaid after such application) and that,~~ in each case pursuant to and subject to the terms, conditions and limitations set forth in the related Loan Combination Intercreditor Agreement. The Trustee, the applicable Master Servicer and the Special Servicer hereby agree, as provided in and subject to the terms, conditions and limitations set forth in the related Loan Combination Intercreditor Agreement, ~~would otherwise have been payable out of future collections on such Companion Loan. Notwithstanding anything herein~~ not to ~~the contrary,~~ treat any such ~~purchase shall be~~ default by the subject ~~to such reimbursements. Any reference to servicing any of~~ Mortgagor that is so cured by a B-Note Loan Holder as a default for the ~~Mortgage Loans~~ purposes specified in ~~accordance with any of~~ the related ~~Mortgage~~ Loan ~~Documents (including the related Mortgage Note and Mortgage) shall also mean, in the case of a Loan Combination, in accordance with the related~~ Combination Intercreditor Agreement. For purposes of exercising any rights that the holder of the Mortgage Note for any Mortgage Loan in a Loan Combination may have under the related Intercreditor Agreement, the Subordinate Class Representative shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Intercreditor Agreement to effect such designation. (e) ~~With~~ To the extent not otherwise expressly provided for herein, the Special Servicer shall provide to each B-Note Loan Holder or its designee, with respect to ~~each~~ the related B-Note Non-Trust Loan ~~Combination~~or any related Loan Combination REO Property, subject to the same conditions and restrictions on the distribution of information as apply with respect to reports, documents and other information with respect to the Trust Mortgage Loans, the same reports, documents and other information that the Special Servicer provides to the Trustee with respect to the related A-Note Trust Mortgage Loan or the related Loan Combination REO Property, and on a concurrent basis. The Trustee and the Special Servicer shall each provide or make available to each B-Note Loan Holder or its designee, with respect to the related B-Note Non-Trust Loan or any related Loan Combination REO Property, the same reports, documents and other information that the Trustee, the applicable Master Servicer or the Special Servicer, as ~~applicable~~the case may be, ~~shall provide each Companion Loan Holder and, if applicable, related Non-Directing Holder (or its designee or representative)~~ provides to the ~~extent required hereunder to be provided to Certificateholders or to the Subordinate~~ Controlling Class Representative, ~~within the same time frame it is required to provide such information and materials~~ in so far as they relate to the ~~Certificateholders~~ related A-Note Trust Mortgage Loan or the ~~Subordinate Class Representative~~related Loan Combination REO Property, as applicable, hereunder (1) with copies of each financial statement received by the Master Servicer pursuant to the terms of the related Mortgage Loan Documents, (2) with copies of any notice of default sent to the Borrower and (3) subject to the terms of the related Mortgage Loan Documents, copies of any other documents relating to the Loan Combination, including, without limitation, property inspection reports, loan servicing statements, Borrower requests, asset status reports, any other information delivered by the Master Servicer to the Subordinate Class Representative and copies of any other notice, information or report that it is required to provide to the Subordinate Class Representative pursuant to this Agreement with respect to any “major decisions” or the implementation of any recommended actions outlined in an Asset Status Report relating to such Loan Combinationon a concurrent basis. ~~Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means. (f) With respect to each Loan Combination~~In addition, the Trustee, the applicable Master Servicer or the Special Servicer, as ~~applicable~~the case may be, shall~~: (i) consult with the related Companion~~ , upon receipt of a written request, provide to a B-Note Loan Holder (or its designee (at such holder's cost) all other documents and information that such holder or ~~representative) on a strictly non~~its designee may reasonably request with respect to the related B-~~binding basis~~Note Non-Trust Loan or any Loan Combination REO Property, to the extent ~~that~~ such ~~Companion~~ documents and information are in its possession. Notwithstanding the foregoing, none of the Trustee or the Special Servicer shall be required to deliver to any B-Note Loan Holder (or its designee any particular report, document or ~~representative~~other information pursuant to this Section 3.28(e) ~~requests consultation with respect~~ if and to the extent that (but only if and to the extent that) such particular report, document or other information is otherwise delivered to such B-Note Loan Holder within the same time period contemplated by this Section 3.28(e) pursuant to any ~~“major decision” set forth in~~ other section of this Agreement. (f) The applicable Master Servicer and the ~~related Intercreditor Agreement or~~ Special Servicer each hereby agree that, prior to taking any of the ~~implementation of any recommended actions outlined in an Asset Status Report relating to~~ Sportmart/Westwood Loan Combination Specially Designated Servicing Actions, it shall consult with, and provide required notices and information to, the Sportmart/Westwood Storage B-Note Loan ~~Combination~~Noteholder pursuant to, and to ~~consider alternative actions recommended by such Companion Loan Holder (or its designee or representative); provided that after~~ the ~~expiration of a period of ten (10) Business Days from the delivery to~~ extent required by, the related ~~Companion~~ Loan ~~Holder (or its designee or representative) of written notice of~~ Combination Intercreditor Agreement. If at any time when the Sportmart/Westwood Storage B-Note Non-Trust Loan is subject to a ~~proposed action, together with copies of the related notice, information or report~~Sportmart/Westwood Storage Loan Combination Control Appraisal Event, the ~~Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the~~ applicable Companion Loan Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the foregoing non-binding consultation rights of the Companion Loan Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan Holder. In no event shall the Master Servicer or the Special Servicer shall be ~~obligated at~~ required to provide notice of any ~~time~~ Sportmart/Westwood Storage Loan Combination Specially Designated Servicing Actions prior to ~~follow~~ or ~~take~~ simultaneously with such action being taken, subject to any ~~alternative actions recommended by~~ restrictions set forth in the ~~Companion Loan Holder; and~~Sportmart/Westwood Storage Intercreditor Agreement. (iig) In the case of the Stonestown Mall Loan Combination, in ~~addition~~ the event that the related B-Note Loan Holder is no longer the Stonestown Mall Loan Combination Controlling Party because a Stonestown Mall Loan Combination Control Appraisal Event is in effect with respect to the ~~foregoing~~ related B-Note Non-Trust Loan, such B-Note Loan Holder shall have non-binding consultation ~~rights, the Companion Loan Holder shall have the right~~ rights to ~~annual meetings~~ consult with the ~~Master Servicer or~~ Special Servicer; provided, that, unless otherwise provided in the Stonestown Mall Intercreditor Agreement, the Special Servicer ~~at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable~~ shall not be obligated to ~~the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related Loan Combination are discussed~~institute such consultation.

Appears in 1 contract

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

Certain Matters Regarding the Loan Combinations. (a) ~~With respect to~~ If the [Blackacre] Pari Passu Non-Trust Loan ~~Combinations~~is no longer an asset of the trust fund for the [Other Series] Securitization, ~~except for those duties to~~ then, in accordance with the [Blackacre] Intercreditor Agreement, the [Blackacre] Loan Combination shall be ~~performed by~~serviced under this Agreement by the Master Servicer and the Special Servicer and the Mortgage Loans in the [Blackacre] Loan Combination shall be Serviced Mortgage Loans hereunder. (b) The parties hereto, the Plurality Subordinate Certificateholder, by its acceptance of its rights and obligations set forth herein, and ~~notices~~ each Certificateholder, by its acceptance of a Certificate, hereby acknowledge the rights of the [Blackacre] Subordinate Noteholders, upon the occurrence of a [Blackacre] Triggering Event under the [Blackacre] Intercreditor Agreement, to ~~be furnished by~~purchase the [Blackacre] Trust Mortgage Loan from the Trust, subject to the terms, conditions and limitations set forth in, and at the price specified in, the ~~Trustee under this~~ related Loan Combination Intercreditor Agreement, and the parties hereto agree to take such actions contemplated by the related Loan Combination Intercreditor Agreement as may be expressly contemplated thereby, or otherwise reasonably necessary, to allow a [Blackacre] Subordinate Noteholder to purchase the related [Blackacre] Trust Mortgage Loan from the Trust. Such purchase right shall be superior to the corresponding Purchase Option set forth in Section 3.18(c)). (c) In connection with any purchase of the [Blackacre] Trust Mortgage Loan by a [Blackacre] Non-Trust Noteholder pursuant to the [Blackacre] Intercreditor Agreement, the Master Servicer or the Special ~~Servicer~~Servicer shall (i) if it receives the "Defaulted Mortgage Loan Purchase Price" (as defined in the [Blackacre] Intercreditor Agreement) and/or any other amounts payable in connection with the purchase, deposit same, or remit same to the Master Servicer for deposit, as applicable, ~~shall perform such duties and furnish such notices~~into the Collection Account or, ~~reports and information on behalf of~~ if the [Blackacre] Trust ~~Fund as may be the obligation of the Trust under~~ Mortgage Loan is being serviced hereunder pursuant to Section 3.28, the related ~~Intercreditor Agreement.~~ Loan Combination Custodial Account, as applicable, and so notify the Trustee; and (bii) ~~The Master Servicer shall maintain a register (~~subject to Section 3.01(g), deliver the “Companion Loan Holder Register”) on which the Master Servicer shall record the names and addresses of the Companion Loan Holders and wire transfer instructions for such Companion Loan Holders from time to time, related Servicing File to the ~~extent such information is provided in writing to~~ Person effecting the ~~Master Servicer by the related Companion Loan Holder~~purchase or its designee. ~~Upon the transfer of any Companion Loan~~In addition, ~~each subsequent Companion Loan Holder has agreed to inform the Master Servicer of~~ upon its name and address and of any transfer thereof by delivering a copy of an assignment and assumption agreement pursuant to the related Intercreditor Agreement. Additionally, each Companion Loan Holder shall inform the Master Servicer of its taxpayer identification number and wiring instructions. The name, address, tax identification number, and wiring instructions of each initial Companion Loan Holder as of the Closing Date is set forth on Schedule X hereto. The Master Servicer shall be entitled to conclusively rely upon the information set forth on Schedule X hereto or delivered by any Companion Loan Holder until it receives written notice of transfer or of any change in information. Upon receipt of a ~~written request~~ Request for Release from any party hereto, the Master Servicer shall provide a current list of Companion Loan Holders, together with contact information for the Companion Loan Holders. In no event shall the Master Servicer be obligated to pay any party the amounts payable to a Companion Loan Holders hereunder other than the Person listed as the applicable Companion Loan Holders on the Companion Loan Holder Register. In the event that a Companion Loan Holder transfers the related Companion Loan without notice to the Master Servicer, the ~~Master Servicer~~ Trustee shall: (i) deliver the Mortgage File to the Person effecting the purchase or its designee; and (ii) execute and deliver such endorsements, assignments and instruments of transfer as shall ~~have no liability whatsoever for any misdirected payment on such Companion~~ be provided to it and are reasonably necessary to vest ownership of the [Blackacre] Trust Mortgage Loan ~~and shall have no obligation to recover and redirect such payment. The Master Servicer shall promptly provide~~ in the ~~names and addresses of any Companion Loan Holders to any party hereto, and any such party or successor may~~appropriate transferee, without ~~further investigation~~recourse, conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such names and addresses. (c) With respect to any Loan Combination, the Subordinate Class Representative shall be entitled to exercise the consent rights to the extent set forth in the applicable Intercreditor Agreement, in accordance with the terms of the related Intercreditor Agreement and this Agreementrepresentations or warranties. (d) The Special Servicer (if any Companion Loan is a Specially Serviced Mortgage Loan or has become an REO Mortgage Loan) or the Master Servicer (with respect to any Companion Loan that is not a Specially Serviced Mortgage Loan), as applicable, shall take all actions relating to the servicing and/or administration of, and the preparation and delivery of reports and other information with respect to, the Loan Combination related to any Companion Loan or any related REO Property required to be performed by the holder of the related Mortgage Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the related Intercreditor Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of a Companion Loan: (i) none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and (ii) the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the related Companion Loan Holder(s) to the extent required by the related Intercreditor Agreement. If any Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust” (within the meaning of the Grantor Trust Provisions), then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust. The parties hereto acknowledge that ~~a Companion Loan Holder~~ each Non-Trust Noteholder shall not (1) owe any fiduciary duty to the Trustee~~, the Certificate Administrator~~, the Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the related Loan Combination Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that ~~a Companion Loan Holder~~ each Non-Trust Noteholder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the ~~interests~~ interest of the Certificateholders and shall be deemed to have agreed to take no action against a ~~Companion Loan Holder~~ Non-Trust Noteholder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates. The parties hereto recognize and acknowledge the respective rights of each Companion Loan Holder under the related Intercreditor Agreement. Each of the rights of a Companion Loan Holder under or contemplated by this Section 3.26(d) may be exercisable by a designee thereof on its behalf; provided that the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee are provided with written notice by the related Companion Loan Holder of such designation (upon which such party may conclusively rely) and the contact details of the designee. If any Person purchases the related Mortgage Loan as a Defaulted Mortgage Loan pursuant to Section 3.18, then (subject to the related Intercreditor Agreement) the Person effecting the purchase must also pay and/or reimburse to the parties hereto the respective amounts then currently due and owing to them hereunder with respect to the related Companion Loan(s) that, pursuant to this Agreement, would not otherwise have been payable out of the applicable purchase price and/or any other amounts payable in connection with such purchase (or if payable out of such purchase price and/or other amounts, remain unpaid after such application) and that, pursuant to the related Intercreditor Agreement, would otherwise have been payable out of future collections on such Companion Loan. Notwithstanding anything herein to the contrary, any such purchase shall be subject to such reimbursements. Any reference to servicing any of the Mortgage Loans in accordance with any of the related Mortgage Loan Documents (including the related Mortgage Note and Mortgage) shall also mean, in the case of a Loan Combination, in accordance with the related Intercreditor Agreement. For purposes of exercising any rights that the holder of the Mortgage Note for any Mortgage Loan in a Loan Combination may have under the related Intercreditor Agreement, the Subordinate Class Representative shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Intercreditor Agreement to effect such designation. (e) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall provide each Companion Loan Holder and, if applicable, related Non-Directing Holder (or its designee or representative) to the extent required hereunder to be provided to Certificateholders or to the Subordinate Class Representative, within the same time frame it is required to provide such information and materials to the Certificateholders or the Subordinate Class Representative, as applicable, hereunder (1) with copies of each financial statement received by the Master Servicer pursuant to the terms of the related Mortgage Loan Documents, (2) with copies of any notice of default sent to the Borrower and (3) subject to the terms of the related Mortgage Loan Documents, copies of any other documents relating to the Loan Combination, including, without limitation, property inspection reports, loan servicing statements, Borrower requests, asset status reports, any other information delivered by the Master Servicer to the Subordinate Class Representative and copies of any other notice, information or report that it is required to provide to the Subordinate Class Representative pursuant to this Agreement with respect to any “major decisions” or the implementation of any recommended actions outlined in an Asset Status Report relating to such Loan Combination. Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means. (f) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall: (i) consult with the related Companion Loan Holder (or its designee or representative) on a strictly non-binding basis, to the extent that such Companion Loan Holder (or its designee or representative) requests consultation with respect to any “major decision” set forth in the related Intercreditor Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Loan Combination, and to consider alternative actions recommended by such Companion Loan Holder (or its designee or representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the related Companion Loan Holder (or its designee or representative) of written notice of a proposed action, together with copies of the related notice, information or report, the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the applicable Companion Loan Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the foregoing non-binding consultation rights of the Companion Loan Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan Holder. In no event shall the Master Servicer or the Special Servicer be obligated at any time to follow or take any alternative actions recommended by the Companion Loan Holder; and (ii) in addition to the foregoing non-binding consultation rights, the Companion Loan Holder shall have the right to annual meetings with the Master Servicer or the Special Servicer at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related Loan Combination are discussed.

Appears in 1 contract

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

Certain Matters Regarding the Loan Combinations. (a) ~~With respect to Loan Combinations~~The parties hereto, ~~except for those duties to be performed by~~the Plurality Subordinate Certificateholder, by its acceptance of its rights and obligations set forth herein, and ~~notices~~ each Certificateholder, by its acceptance of a Certificate, hereby acknowledge the right of the Non-Trust Noteholder, upon the occurrence of certain specified events under the related Loan Combination Intercreditor Agreement, to ~~be furnished by~~purchase the Trust Mortgage Loan that is a part of the related Loan Combination from the Trust, subject to the terms, conditions and limitations set forth in, and at the price specified in, the ~~Trustee under this~~ related Loan Combination Intercreditor Agreement, and the parties hereto agree to take such actions contemplated by the related Loan Combination Intercreditor Agreement as may be expressly contemplated thereby, or otherwise reasonably necessary, to allow a Non-Trust Noteholder to purchase the related Trust Mortgage Loan from the Trust. Such purchase right shall be superior to the corresponding Purchase Option set forth in Section 3.18(c)). (b) In connection with any purchase of a Trust Mortgage Loan that is part of a Loan Combination by a related Non-Trust Noteholder pursuant to the related Loan Combination Intercreditor Agreement, the Master Servicer or the Special ~~Servicer~~Servicer shall (i) if it receives the "Defaulted Mortgage Loan Purchase Price" (as defined in the related Loan Combination Intercreditor Agreement) and/or any other amounts payable in connection with the purchase, deposit same, or remit same to the Master Servicer for deposit, as applicable, ~~shall perform such duties and furnish such notices, reports and information on behalf of~~ into the ~~Trust Fund as may be the obligation of the Trust under~~ Collection Account or the related ~~Intercreditor Agreement.~~ Loan Combination Custodial Account, as applicable, and so notify the Trustee; and (bii) ~~The Master Servicer shall maintain a register (~~deliver the “Companion Loan Holder Register”) on which the Master Servicer shall record the names and addresses of the Companion Loan Holders and wire transfer instructions for such Companion Loan Holders from time to time, related Servicing File to the ~~extent such information is provided in writing to~~ Person effecting the ~~Master Servicer by the related Companion Loan Holder~~purchase or its designee. ~~Upon the transfer of any Companion Loan~~In addition, ~~each subsequent Companion Loan Holder has agreed to inform the Master Servicer of~~ upon its name and address and of any transfer thereof by delivering a copy of an assignment and assumption agreement pursuant to the related Intercreditor Agreement. Additionally, each Companion Loan Holder shall inform the Master Servicer of its taxpayer identification number and wiring instructions. The name, address, tax identification number, and wiring instructions of each initial Companion Loan Holder as of the Closing Date is set forth on Schedule X hereto. The Master Servicer shall be entitled to conclusively rely upon the information set forth on Schedule X hereto or delivered by any Companion Loan Holder until it receives written notice of transfer or of any change in information. Upon receipt of a ~~written request~~ Request for Release from any party hereto, the Master Servicer shall provide a current list of Companion Loan Holders, together with contact information for the Companion Loan Holders. In no event shall the Master Servicer be obligated to pay any party the amounts payable to a Companion Loan Holders hereunder other than the Person listed as the applicable Companion Loan Holders on the Companion Loan Holder Register. In the event that a Companion Loan Holder transfers the related Companion Loan without notice to the Master Servicer, the ~~Master Servicer~~ Trustee shall: (i) deliver the Mortgage File to the Person effecting the purchase or its designee; and (ii) execute and deliver such endorsements, assignments and instruments of transfer as shall ~~have no liability whatsoever for any misdirected payment on such Companion~~ be provided to it and are reasonably necessary to vest ownership of the subject Trust Mortgage Loan ~~and shall have no obligation to recover and redirect such payment. The Master Servicer shall promptly provide~~ in the ~~names and addresses of any Companion Loan Holders to any party hereto, and any such party or successor may~~appropriate transferee, without ~~further investigation~~recourse, ~~conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such names and addresses~~representations or warranties. (c) With respect to any Loan Combination, the Subordinate Class Representative shall be entitled to exercise the consent rights to the extent set forth in the applicable Intercreditor Agreement, in accordance with the terms of the related Intercreditor Agreement and this Agreement. (d) The Special Servicer (if any Companion Loan is a Specially Serviced Mortgage Loan or has become an REO Mortgage Loan) or the Master Servicer (with respect to any Companion Loan that is not a Specially Serviced Mortgage Loan), as applicable, shall take all actions relating to the servicing and/or administration of, and the preparation and delivery of reports and other information with respect to, the Loan Combination related to any Companion Loan or any related REO Property required to be performed by the holder of the related Mortgage Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the related Intercreditor Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of a Companion Loan: (i) none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and (ii) the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the related Companion Loan Holder(s) to the extent required by the related Intercreditor Agreement. If any Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust” (within the meaning of the Grantor Trust Provisions), then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust. The parties hereto acknowledge that ~~a Companion Loan Holder~~ each Non-Trust Noteholder shall not (1) owe any fiduciary duty to the Trustee~~, the Certificate Administrator~~, the Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the related Loan Combination Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that ~~a Companion Loan Holder~~ each Non-Trust Noteholder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the ~~interests~~ interest of the Certificateholders and shall be deemed to have agreed to take no action against a ~~Companion Loan Holder~~ Non-Trust Noteholder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates. The parties hereto recognize and acknowledge the respective rights of each Companion Loan Holder under the related Intercreditor Agreement. Each of the rights of a Companion Loan Holder under or contemplated by this Section 3.26(d) may be exercisable by a designee thereof on its behalf; provided that the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee are provided with written notice by the related Companion Loan Holder of such designation (upon which such party may conclusively rely) and the contact details of the designee. If any Person purchases the related Mortgage Loan as a Defaulted Mortgage Loan pursuant to Section 3.18, then (subject to the related Intercreditor Agreement) the Person effecting the purchase must also pay and/or reimburse to the parties hereto the respective amounts then currently due and owing to them hereunder with respect to the related Companion Loan(s) that, pursuant to this Agreement, would not otherwise have been payable out of the applicable purchase price and/or any other amounts payable in connection with such purchase (or if payable out of such purchase price and/or other amounts, remain unpaid after such application) and that, pursuant to the related Intercreditor Agreement, would otherwise have been payable out of future collections on such Companion Loan. Notwithstanding anything herein to the contrary, any such purchase shall be subject to such reimbursements. Any reference to servicing any of the Mortgage Loans in accordance with any of the related Mortgage Loan Documents (including the related Mortgage Note and Mortgage) shall also mean, in the case of a Loan Combination, in accordance with the related Intercreditor Agreement. For purposes of exercising any rights that the holder of the Mortgage Note for any Mortgage Loan in a Loan Combination may have under the related Intercreditor Agreement, the Subordinate Class Representative shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Intercreditor Agreement to effect such designation. (e) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall provide each Companion Loan Holder and, if applicable, related Non-Directing Holder (or its designee or representative) to the extent required hereunder to be provided to Certificateholders or to the Subordinate Class Representative, within the same time frame it is required to provide such information and materials to the Certificateholders or the Subordinate Class Representative, as applicable, hereunder (1) with copies of each financial statement received by the Master Servicer pursuant to the terms of the related Mortgage Loan Documents, (2) with copies of any notice of default sent to the Borrower and (3) subject to the terms of the related Mortgage Loan Documents, copies of any other documents relating to the Loan Combination, including, without limitation, property inspection reports, loan servicing statements, Borrower requests, asset status reports, any other information delivered by the Master Servicer to the Subordinate Class Representative and copies of any other notice, information or report that it is required to provide to the Subordinate Class Representative pursuant to this Agreement with respect to any “major decisions” or the implementation of any recommended actions outlined in an Asset Status Report relating to such Loan Combination. Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means. (f) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall: (i) consult with the related Companion Loan Holder (or its designee or representative) on a strictly non-binding basis, to the extent that such Companion Loan Holder (or its designee or representative) requests consultation with respect to any “major decision” set forth in the related Intercreditor Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Loan Combination, and to consider alternative actions recommended by such Companion Loan Holder (or its designee or representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the related Companion Loan Holder (or its designee or representative) of written notice of a proposed action, together with copies of the related notice, information or report, the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the applicable Companion Loan Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the foregoing non-binding consultation rights of the Companion Loan Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan Holder. In no event shall the Master Servicer or the Special Servicer be obligated at any time to follow or take any alternative actions recommended by the Companion Loan Holder; and (ii) in addition to the foregoing non-binding consultation rights, the Companion Loan Holder shall have the right to annual meetings with the Master Servicer or the Special Servicer at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related Loan Combination are discussed.

Appears in 1 contract

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

Certain Matters Regarding the Loan Combinations. (a) ~~With respect to Loan Combinations~~The parties hereto, ~~except for those duties to be performed by~~the Controlling Class Representative by its acceptance of its rights and obligations set forth herein, and ~~notices~~ each Certificateholder by its acceptance of a Certificate, hereby acknowledge the right of the Non-Trust Noteholders, upon the occurrence of certain specified events under the related Loan Combination Intercreditor Agreement, to ~~be furnished by~~purchase the related Trust Mortgage Loan that is a part of the related Loan Combination from the Trust, subject to the terms, conditions and limitations set forth in, and at the price specified in, the ~~Trustee under this~~ related Loan Combination Intercreditor Agreement, and the parties hereto agree to take such actions contemplated by the related Loan Combination Intercreditor Agreement as may be expressly contemplated thereby, or otherwise reasonably necessary, to allow a Non-Trust Noteholder to purchase the related Trust Mortgage Loan from the Trust. (b) In connection with any purchase of a Trust Mortgage Loan that is part of a Loan Combination by a related Non-Trust Noteholder pursuant to the related Loan Combination Intercreditor Agreement, the applicable Master Servicer or the Special ~~Servicer~~Servicer shall (i) if it receives the applicable purchase price provided for in the related Loan Combination Intercreditor Agreement and/or any other amounts payable in connection with the purchase, deposit same, or remit same to such Master Servicer for deposit, as applicable, ~~shall perform such duties and furnish such notices, reports and information on behalf of~~ into the ~~Trust Fund as may be the obligation of the Trust under~~ applicable Collection Account or the related ~~Intercreditor Agreement.~~ Loan Combination Custodial Account, as applicable, and so notify the Trustee; and (bii) ~~The Master Servicer shall maintain a register (~~deliver the “Companion Loan Holder Register”) on which the Master Servicer shall record the names and addresses of the Companion Loan Holders and wire transfer instructions for such Companion Loan Holders from time to time, related Servicing File to the ~~extent such information is provided in writing to~~ Person effecting the ~~Master Servicer by the related Companion Loan Holder~~purchase or its designee. ~~Upon the transfer of any Companion Loan~~In addition, ~~each subsequent Companion Loan Holder has agreed to inform the Master Servicer of~~ upon its name and address and of any transfer thereof by delivering a copy of an assignment and assumption agreement pursuant to the related Intercreditor Agreement. Additionally, each Companion Loan Holder shall inform the Master Servicer of its taxpayer identification number and wiring instructions. The name, address, tax identification number, and wiring instructions of each initial Companion Loan Holder as of the Closing Date is set forth on Schedule X hereto. The Master Servicer shall be entitled to conclusively rely upon the information set forth on Schedule X hereto or delivered by any Companion Loan Holder until it receives written notice of transfer or of any change in information. Upon receipt of a ~~written request~~ Request for Release from any party hereto, the Master Servicer shall provide a current list of Companion Loan Holders, together with contact information for the Companion Loan Holders. In no event shall the Master Servicer be obligated to pay any party the amounts payable to a Companion Loan Holders hereunder other than the Person listed as the applicable ~~Companion Loan Holders on the Companion Loan Holder Register. In the event that a Companion Loan Holder transfers the related Companion Loan without notice to the~~ Master Servicer, the ~~Master Servicer~~ Trustee shall: (i) deliver the related Mortgage File to the Person effecting the purchase or its designee; and (ii) execute and deliver such endorsements, assignments and instruments of transfer as shall ~~have no liability whatsoever for any misdirected payment on such Companion~~ be provided to it and are reasonably necessary to vest ownership of the subject Trust Mortgage Loan ~~and shall have no obligation to recover and redirect such payment. The Master Servicer shall promptly provide~~ in the ~~names and addresses of any Companion Loan Holders to any party hereto, and any such party or successor may~~appropriate purchaser, without ~~further investigation~~recourse, ~~conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such names and addresses~~representations or warranties. (c) With respect to any Loan Combination, the Subordinate Class Representative shall be entitled to exercise the consent rights to the extent set forth in the applicable Intercreditor Agreement, in accordance with the terms of the related Intercreditor Agreement and this Agreement. (d) The Special Servicer (if any Companion Loan is a Specially Serviced Mortgage Loan or has become an REO Mortgage Loan) or the Master Servicer (with respect to any Companion Loan that is not a Specially Serviced Mortgage Loan), as applicable, shall take all actions relating to the servicing and/or administration of, and the preparation and delivery of reports and other information with respect to, the Loan Combination related to any Companion Loan or any related REO Property required to be performed by the holder of the related Mortgage Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the related Intercreditor Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of a Companion Loan: (i) none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and (ii) the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the related Companion Loan Holder(s) to the extent required by the related Intercreditor Agreement. If any Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust” (within the meaning of the Grantor Trust Provisions), then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust. The parties hereto acknowledge that ~~a Companion Loan Holder~~ each Non-Trust Noteholder shall not (1) owe any fiduciary duty to the Trustee, the ~~Certificate Administrator, the~~ applicable Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the related Loan Combination Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that ~~a Companion Loan Holder~~ each Non-Trust Noteholder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the ~~interests~~ interest of the Certificateholders and shall be deemed to have agreed to take no action against a ~~Companion Loan Holder~~ Non-Trust Noteholder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates~~. The parties hereto recognize and acknowledge~~ . (d) To the respective rights of each Companion Loan Holder under the related Intercreditor Agreement. Each of the rights of a Companion Loan Holder under or contemplated by this Section 3.26(d) may be exercisable by a designee thereof on its behalf; extent not otherwise expressly provided ~~that the Master Servicer~~for herein, the Special ~~Servicer, the Certificate Administrator and the Trustee are provided with written notice by the related Companion~~ Servicer shall provide to each B-Note Loan Holder ~~of such designation (upon which such party may conclusively rely) and the contact details of the~~ or its designee~~. If any Person purchases the related Mortgage Loan as a Defaulted Mortgage Loan pursuant to Section 3.18~~, then (subject to the related Intercreditor Agreement) the Person effecting the purchase must also pay and/or reimburse to the parties hereto the respective amounts then currently due and owing to them hereunder with respect to the related ~~Companion Loan(s~~B-Note Non-Trust Loan or any related Loan Combination REO Property, subject to the same conditions and restrictions on the distribution of information as apply with respect to reports, documents and other information with respect to the Trust Mortgage Loans, the same reports, documents and other information that the Special Servicer provides to the Trustee with respect to the related A-Note Trust Mortgage Loan or the related Loan Combination REO Property, and on a concurrent basis. The Trustee and the Special Servicer shall each provide or make available to each B-Note Loan Holder or its designee, with respect to the related B-Note Non-Trust Loan or any related Loan Combination REO Property, the same reports, documents and other information that the Trustee, the applicable Master Servicer or the Special Servicer, as the case may be, provides to the Controlling Class Representative, in so far as they relate to the related A-Note Trust Mortgage Loan or the related Loan Combination REO Property, and on a concurrent basis. In addition, the Trustee, the applicable Master Servicer or the Special Servicer, as the case may be, shall, upon receipt of a written request, provide to a B-Note Loan Holder or its designee (at such holder's cost) ~~that~~all other documents and information that such holder or its designee may reasonably request with respect to the related B-Note Non-Trust Loan or any Loan Combination REO Property, to the extent such documents and information are in its possession. Notwithstanding the foregoing, none of the Trustee or the Special Servicer shall be required to deliver to any B-Note Loan Holder or its designee any particular report, document or other information pursuant to this ~~Agreement~~Section 3.28(e) if and to the extent that (but only if and to the extent that) such particular report, ~~would not~~ document or other information is otherwise ~~have been payable out of~~ delivered to such B-Note Loan Holder within the ~~applicable purchase price and/or~~ same time period contemplated by this Section 3.28(e) pursuant to any other ~~amounts payable in connection with such purchase (or if payable out~~ section of ~~such purchase price and/or other amounts, remain unpaid after such application) and that, pursuant to the related Intercreditor~~ this Agreement, would otherwise have been payable out of future collections on such Companion Loan. Notwithstanding anything herein to the contrary, any such purchase shall be subject to such reimbursements. Any reference to servicing any of the Mortgage Loans in accordance with any of the related Mortgage Loan Documents (including the related Mortgage Note and Mortgage) shall also mean, in the case of a Loan Combination, in accordance with the related Intercreditor Agreement. For purposes of exercising any rights that the holder of the Mortgage Note for any Mortgage Loan in a Loan Combination may have under the related Intercreditor Agreement, the Subordinate Class Representative shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Intercreditor Agreement to effect such designation. (e) With respect to ~~each Loan Combination,~~ the Master Servicer or the Special Servicer, as applicable, shall provide each Companion Loan Holder and, if applicable, related Non-Directing Holder (or its designee or representative) to the extent required hereunder to be provided to Certificateholders or to the Subordinate Class Representative, within the same time frame it is required to provide such information and materials to the Certificateholders or the Subordinate Class Representative, as applicable, hereunder (1) with copies of each financial statement received by the Master Servicer pursuant to the terms of the related Peter Cooper Village axx Xxxxxxxxxt Town Trust Mortgage Loan Documents, (2) with copies of any notice of default sent to the Borrower and (3) subject to the terms of the related Mortgage Loan Documents, copies of any other documents relating to the Loan Combination, including, without limitation, property inspection reports, loan servicing statements, Borrower requests, asset status reports, any other information delivered by the Master Servicer to the Subordinate Class Representative and copies of any other notice, information or report that it is required to provide to the Subordinate Class Representative pursuant to this Agreement with respect to any “major decisions” or the implementation of any recommended actions outlined in an Asset Status Report relating to such Loan Combination. Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means. (f) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall: (i) consult with the related Companion Loan Holder (or its designee or representative) on a strictly non-binding basisLoan, to the extent ~~that such Companion Loan Holder (or its designee or representative) requests consultation~~ the Trust, as "A-6 Lender" under the Peter Cooper Village axx Xxxxxxxxxt Town Intercreditor Agreement, has the right to exercise a purchase option in accordance with respect to any “major decision” set forth in the related Intercreditor Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Loan Combination, and to consider alternative actions recommended by such Companion Loan Holder (or its designee or representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the related Companion Loan Holder (or its designee or representativeSection 3(b) of ~~written notice of a proposed action, together with copies of~~ the ~~related notice, information or report~~Peter Cooper Village axx Xxxxxxxxxt Town Intercreditor Agreement, the ~~Master Servicer or Special Servicer, as applicable,~~ Controlling Class Representative shall ~~no longer be obligated~~ have the sole and absolute right to consult with the applicable Companion Loan Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case exercise such ~~ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the foregoing non-binding consultation~~ rights of the ~~Companion Loan Holder,~~ "A-6 Lender" under the ~~Master Servicer or the Special Servicer, as applicable, may take any “major decision” set forth in the related~~ Peter Cooper Village axx Xxxxxxxxxt Town Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan Holder. In no event shall the Master Servicer or the Special Servicer be obligated at any time to follow or take any alternative actions recommended by the Companion Loan Holder; and (ii) in addition to the foregoing non-binding consultation rights, the Companion Loan Holder shall have the right to annual meetings with the Master Servicer or the Special Servicer at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related Loan Combination are discussedAgreement.

Appears in 1 contract

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

Certain Matters Regarding the Loan Combinations. (a) ~~With~~ In the event the Special Servicer, in connection with a modification, waiver or amendment in respect of a Trust Mortgage Loan, modifies, waives or amends the terms thereof such that (i) the Stated Principal Balance is decreased, (ii) the Mortgage Rate is reduced, (iii) payments of interest or principal are waived, reduced or deferred or (iv) any other adjustment is made to any of the terms of such Mortgage Loan, all payments made in respect of such Mortgage Loan ~~Combinations~~shall be made as though such modification, ~~except for those duties to be performed by~~waiver or amendment did not occur, with the payment terms of such Mortgage Loan remaining the same as they are on the related Cut-Off Date, and ~~notices~~ the related Non-Trust Loans that are junior thereto shall bear the full economic effect of all waivers, reductions or deferrals of amounts due on such Trust Mortgage Loan attributable to ~~be furnished by~~such modification, waiver or amendment, in each case to the extent permitted by the related Loan Combination Intercreditor Agreement. (b) The parties hereto, the ~~Trustee~~ Plurality Subordinate Certificateholder, by its acceptance of its rights and obligations set forth herein, and each Certificateholder, by its acceptance of a Certificate, hereby acknowledge the right of the Non-Trust Noteholder, upon the occurrence of certain specified events under ~~this~~ the related Loan Combination Intercreditor Agreement, to purchase the Trust Mortgage Loan that is a part of the related Loan Combination from the Trust, subject to the terms, conditions and limitations set forth in, and at the price specified in, the related Loan Combination Intercreditor Agreement, and the parties hereto agree to take such actions contemplated by the related Loan Combination Intercreditor Agreement as may be expressly contemplated thereby, or otherwise reasonably necessary, to allow a Non-Trust Noteholder to purchase the related Trust Mortgage Loan from the Trust. Such purchase right shall be superior to the corresponding Purchase Option set forth in Section 3.18(c)). (c) In connection with any purchase of a Trust Mortgage Loan that is part of a Loan Combination by a related Non-Trust Noteholder pursuant to the related Loan Combination Intercreditor Agreement, the Master Servicer or the Special ~~Servicer~~Servicer shall (i) if it receives the "Defaulted Mortgage Loan Purchase Price" (as defined in the related Loan Combination Intercreditor Agreement) and/or any other amounts payable in connection with the purchase, deposit same, or remit same to the Master Servicer for deposit, as applicable, ~~shall perform such duties and furnish such notices, reports and information on behalf of~~ into the ~~Trust Fund as may be the obligation of the Trust under~~ Collection Account or the related ~~Intercreditor Agreement.~~ Loan Combination Custodial Account, as applicable, and so notify the Trustee; and (bii) ~~The Master Servicer shall maintain a register (~~deliver the “Companion Loan Holder Register”) on which the Master Servicer shall record the names and addresses of the Companion Loan Holders and wire transfer instructions for such Companion Loan Holders from time to time, related Servicing File to the ~~extent such information is provided in writing to~~ Person effecting the ~~Master Servicer by the related Companion Loan Holder~~purchase or its designee. ~~Upon the transfer of any Companion Loan~~In addition, ~~each subsequent Companion Loan Holder has agreed to inform the Master Servicer of~~ upon its name and address and of any transfer thereof by delivering a copy of an assignment and assumption agreement pursuant to the related Intercreditor Agreement. Additionally, each Companion Loan Holder shall inform the Master Servicer of its taxpayer identification number and wiring instructions. The name, address, tax identification number, and wiring instructions of each initial Companion Loan Holder as of the Closing Date is set forth on Schedule X hereto. The Master Servicer shall be entitled to conclusively rely upon the information set forth on Schedule X hereto or delivered by any Companion Loan Holder until it receives written notice of transfer or of any change in information. Upon receipt of a ~~written request~~ Request for Release from any party hereto, the Master Servicer shall provide a current list of Companion Loan Holders, together with contact information for the Companion Loan Holders. In no event shall the Master Servicer be obligated to pay any party the amounts payable to a Companion Loan Holders hereunder other than the Person listed as the applicable Companion Loan Holders on the Companion Loan Holder Register. In the event that a Companion Loan Holder transfers the related Companion Loan without notice to the Master Servicer, the ~~Master Servicer~~ Trustee shall: (i) deliver the Mortgage File to the Person effecting the purchase or its designee; and (ii) execute and deliver such endorsements, assignments and instruments of transfer as shall ~~have no liability whatsoever for any misdirected payment on such Companion~~ be provided to it and are reasonably necessary to vest ownership of the subject Trust Mortgage Loan ~~and shall have no obligation to recover and redirect such payment. The Master Servicer shall promptly provide~~ in the ~~names and addresses of any Companion Loan Holders to any party hereto, and any such party or successor may~~appropriate transferee, without ~~further investigation~~recourse, conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such names and addresses. (c) With respect to any Loan Combination, the Subordinate Class Representative shall be entitled to exercise the consent rights to the extent set forth in the applicable Intercreditor Agreement, in accordance with the terms of the related Intercreditor Agreement and this Agreementrepresentations or warranties. (d) The Special Servicer (if any Companion Loan is a Specially Serviced Mortgage Loan or has become an REO Mortgage Loan) or the Master Servicer (with respect to any Companion Loan that is not a Specially Serviced Mortgage Loan), as applicable, shall take all actions relating to the servicing and/or administration of, and the preparation and delivery of reports and other information with respect to, the Loan Combination related to any Companion Loan or any related REO Property required to be performed by the holder of the related Mortgage Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the related Intercreditor Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of a Companion Loan: (i) none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and (ii) the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the related Companion Loan Holder(s) to the extent required by the related Intercreditor Agreement. If any Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust” (within the meaning of the Grantor Trust Provisions), then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust. The parties hereto acknowledge that ~~a Companion Loan Holder~~ each Non-Trust Noteholder shall not (1) owe any fiduciary duty to the Trustee~~, the Certificate Administrator~~, the Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the related Loan Combination Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that ~~a Companion Loan Holder~~ each Non-Trust Noteholder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the ~~interests~~ interest of the Certificateholders and shall be deemed to have agreed to take no action against a ~~Companion Loan Holder~~ Non-Trust Noteholder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates. The parties hereto recognize and acknowledge the respective rights of each Companion Loan Holder under the related Intercreditor Agreement. Each of the rights of a Companion Loan Holder under or contemplated by this Section 3.26(d) may be exercisable by a designee thereof on its behalf; provided that the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee are provided with written notice by the related Companion Loan Holder of such designation (upon which such party may conclusively rely) and the contact details of the designee. If any Person purchases the related Mortgage Loan as a Defaulted Mortgage Loan pursuant to Section 3.18, then (subject to the related Intercreditor Agreement) the Person effecting the purchase must also pay and/or reimburse to the parties hereto the respective amounts then currently due and owing to them hereunder with respect to the related Companion Loan(s) that, pursuant to this Agreement, would not otherwise have been payable out of the applicable purchase price and/or any other amounts payable in connection with such purchase (or if payable out of such purchase price and/or other amounts, remain unpaid after such application) and that, pursuant to the related Intercreditor Agreement, would otherwise have been payable out of future collections on such Companion Loan. Notwithstanding anything herein to the contrary, any such purchase shall be subject to such reimbursements. Any reference to servicing any of the Mortgage Loans in accordance with any of the related Mortgage Loan Documents (including the related Mortgage Note and Mortgage) shall also mean, in the case of a Loan Combination, in accordance with the related Intercreditor Agreement. For purposes of exercising any rights that the holder of the Mortgage Note for any Mortgage Loan in a Loan Combination may have under the related Intercreditor Agreement, the Subordinate Class Representative shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Intercreditor Agreement to effect such designation. (e) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall provide each Companion Loan Holder and, if applicable, related Non-Directing Holder (or its designee or representative) to the extent required hereunder to be provided to Certificateholders or to the Subordinate Class Representative, within the same time frame it is required to provide such information and materials to the Certificateholders or the Subordinate Class Representative, as applicable, hereunder (1) with copies of each financial statement received by the Master Servicer pursuant to the terms of the related Mortgage Loan Documents, (2) with copies of any notice of default sent to the Borrower and (3) subject to the terms of the related Mortgage Loan Documents, copies of any other documents relating to the Loan Combination, including, without limitation, property inspection reports, loan servicing statements, Borrower requests, asset status reports, any other information delivered by the Master Servicer to the Subordinate Class Representative and copies of any other notice, information or report that it is required to provide to the Subordinate Class Representative pursuant to this Agreement with respect to any “major decisions” or the implementation of any recommended actions outlined in an Asset Status Report relating to such Loan Combination. Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means. (f) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall: (i) consult with the related Companion Loan Holder (or its designee or representative) on a strictly non-binding basis, to the extent that such Companion Loan Holder (or its designee or representative) requests consultation with respect to any “major decision” set forth in the related Intercreditor Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Loan Combination, and to consider alternative actions recommended by such Companion Loan Holder (or its designee or representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the related Companion Loan Holder (or its designee or representative) of written notice of a proposed action, together with copies of the related notice, information or report, the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the applicable Companion Loan Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the foregoing non-binding consultation rights of the Companion Loan Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan Holder. In no event shall the Master Servicer or the Special Servicer be obligated at any time to follow or take any alternative actions recommended by the Companion Loan Holder; and (ii) in addition to the foregoing non-binding consultation rights, the Companion Loan Holder shall have the right to annual meetings with the Master Servicer or the Special Servicer at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related Loan Combination are discussed.

Appears in 1 contract

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

Certain Matters Regarding the Loan Combinations. (a) ~~With respect to Loan Combinations, except for those duties to be performed by, and notices to be furnished by,~~ In the ~~Trustee under this Agreement, the Master Servicer or~~ event the Special Servicer, ~~as applicable~~in connection with a modification, ~~shall perform~~ waiver or amendment in respect of a Trust Mortgage Loan that is part of a Loan Combination, modifies, waives or amends the terms thereof such ~~duties and furnish such notices~~that (i) the Stated Principal Balance is decreased, ~~reports and information on behalf~~ (ii) the Mortgage Rate is reduced, (iii) payments of interest or principal are waived, reduced or deferred or (iv) any other adjustment is made to any of the ~~Trust Fund~~ terms of such Mortgage Loan, all payments made in respect of such Mortgage Loan shall be made as ~~may be~~ though such modification, waiver or amendment did not occur, with the ~~obligation~~ payment terms of such Mortgage Loan remaining the ~~Trust under~~ same as they are on the related Cut-Off Date, and the related Non-Trust Loans that are junior thereto shall bear (to the extent possible) the full economic effect of all waivers, reductions or deferrals of amounts due on such Trust Mortgage Loan attributable to such modification, waiver or amendment, in each case only to the extent permitted by the related Loan Combination Intercreditor Agreement. (b) The ~~Master Servicer shall maintain~~ parties hereto, the Controlling Class Representative by its acceptance of its rights and obligations set forth herein, and each Certificateholder by its acceptance of a ~~register (~~Certificate, hereby acknowledge the ~~“Companion Loan Holder Register”) on which the Master Servicer shall record the names and addresses~~ right of the ~~Companion~~ Non-Trust Noteholders, upon the occurrence of certain specified events under the related Loan ~~Holders and wire transfer instructions for such Companion Loan Holders from time to time~~Combination Intercreditor Agreement, to purchase the ~~extent such information~~ related Trust Mortgage Loan that is ~~provided in writing~~ a part of the related Loan Combination from the Trust, subject to the ~~Master Servicer~~ terms, conditions and limitations set forth in, and at the price specified in, the related Loan Combination Intercreditor Agreement, and the parties hereto agree to take such actions contemplated by the related ~~Companion~~ Loan ~~Holder. Upon the transfer of any Companion Loan~~Combination Intercreditor Agreement as may be expressly contemplated thereby, ~~each subsequent Companion Loan Holder has agreed~~ or otherwise reasonably necessary, to ~~inform the Master Servicer of its name and address and of any transfer thereof by delivering~~ allow a ~~copy of an assignment and assumption agreement pursuant~~ Non-Trust Noteholder to purchase the related ~~Intercreditor Agreement. Additionally, each Companion~~ Trust Mortgage Loan ~~Holder shall inform~~ from the Master Servicer of its taxpayer identification number and wiring instructions. The name, address, tax identification number, and wiring instructions of each initial Companion Loan Holder as of the Closing Date is set forth on Schedule X hereto. The Master Servicer shall be entitled to conclusively rely upon the information set forth on Schedule X hereto or delivered by any Companion Loan Holder until it receives written notice of transfer or of any change in information. Upon receipt of a written request from any party hereto, the Master Servicer shall provide a current list of Companion Loan Holders, together with contact information for the Companion Loan Holders. In no event shall the Master Servicer be obligated to pay any party the amounts payable to a Companion Loan Holders hereunder other than the Person listed as the applicable Companion Loan Holders on the Companion Loan Holder Register. In the event that a Companion Loan Holder transfers the related Companion Loan without notice to the Master Servicer, the Master Servicer shall have no liability whatsoever for any misdirected payment on such Companion Loan and shall have no obligation to recover and redirect such payment. The Master Servicer shall promptly provide the names and addresses of any Companion Loan Holders to any party hereto, and any such party or successor may, without further investigation, conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such names and addressesTrust. (c) ~~With respect to~~ In connection with any purchase of a Trust Mortgage Loan ~~Combination, the Subordinate Class Representative shall be entitled to exercise the consent rights~~ that is part of a Loan Combination by a related Non-Trust Noteholder pursuant to the ~~extent set forth in the applicable~~ related Loan Combination Intercreditor Agreement, the applicable Master Servicer or the Special Servicer shall (i) if it receives the applicable purchase price provided for in ~~accordance~~ the related Loan Combination Intercreditor Agreement and/or any other amounts payable in connection with the ~~terms~~ purchase, deposit same, or remit same to such Master Servicer for deposit, as applicable, into the applicable Collection Account or the related Loan Combination Custodial Account, as applicable, and so notify the Trustee; and (ii) deliver the related Servicing File to the Person effecting the purchase or its designee. In addition, upon its receipt of a Request for Release from the applicable Master Servicer, the Custodian shall: (i) deliver the related Mortgage File to the Person effecting the purchase or its designee; and (ii) execute and deliver such endorsements, assignments and instruments of transfer as shall be provided to it and are reasonably necessary to vest ownership of the ~~related Intercreditor Agreement and this Agreement~~subject Trust Mortgage Loan in the appropriate purchaser, without recourse, representations or warranties. (d) The Special Servicer (if any Companion Loan is a Specially Serviced Mortgage Loan or has become an REO Mortgage Loan) or the Master Servicer (with respect to any Companion Loan that is not a Specially Serviced Mortgage Loan), as applicable, shall take all actions relating to the servicing and/or administration of, and the preparation and delivery of reports and other information with respect to, the Loan Combination related to any Companion Loan or any related REO Property required to be performed by the holder of the related Mortgage Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the related Intercreditor Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of a Companion Loan: (i) none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and (ii) the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the related Companion Loan Holder(s) to the extent required by the related Intercreditor Agreement. If any Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust” (within the meaning of the Grantor Trust Provisions), then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust. The parties hereto acknowledge that ~~a Companion Loan Holder~~ each Non-Trust Noteholder shall not (1) owe any fiduciary duty to the Trustee, the ~~Certificate Administrator, the~~ applicable Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the related Loan Combination Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that ~~a Companion Loan Holder~~ each Non-Trust Noteholder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the ~~interests~~ interest of the Certificateholders and shall be deemed to have agreed to take no action against a ~~Companion Loan Holder~~ Non-Trust Noteholder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates. . (e) The parties ~~hereto recognize~~ hereto, the Controlling Class Representative by its acceptance of its rights and obligations set forth herein, and each Certificateholder by its acceptance of a Certificate, also hereby acknowledge the ~~respective rights~~ right of ~~each Companion~~ the B-Note Loan Holder ~~under the related Intercreditor Agreement. Each~~ with respect to each of the ~~rights~~ Loan Combinations other than the Capitol Hill Project Loan Combination to cure certain events of a Companion Loan Holder under or contemplated by this Section 3.26(d) may be exercisable by a designee thereof on its behalf; provided that the Master Servicer, the Special Servicer, the Certificate Administrator and the Trustee are provided with written notice default by the related Companion Loan Holder of such designation (upon which such party may conclusively rely) and the contact details of the designee. If any Person purchases the related Mortgage Loan as a Defaulted Mortgage Loan pursuant to Section 3.18, then (subject to the related Intercreditor Agreement) the Person effecting the purchase must also pay and/or reimburse to the parties hereto the respective amounts then currently due and owing to them hereunder Mortgagor with respect to the related ~~Companion Loan(s) that, pursuant~~ Loan Combination and to ~~this Agreement, would not otherwise have been payable out of the applicable purchase price and/or~~ be reimbursed for any ~~other~~ amounts ~~payable~~ advanced in connection with any such ~~purchase (or if payable out of such purchase price and/or other amounts~~cure, ~~remain unpaid after such application) and that,~~ in each case pursuant to and subject to the terms, conditions and limitations set forth in the related Loan Combination Intercreditor Agreement. The Trustee, the applicable Master Servicer and the Special Servicer hereby agree, as provided in and subject to the terms, conditions and limitations set forth in the related Loan Combination Intercreditor Agreement, ~~would otherwise have been payable out of future collections on such Companion Loan. Notwithstanding anything herein~~ not to ~~the contrary,~~ treat any such ~~purchase shall be~~ default by the subject ~~to such reimbursements. Any reference to servicing any of~~ Mortgagor that is so cured by a B-Note Loan Holder as a default for the ~~Mortgage Loans~~ purposes specified in ~~accordance with any of~~ the related ~~Mortgage~~ Loan ~~Documents (including the related Mortgage Note and Mortgage) shall also mean, in the case of a Loan Combination, in accordance with the related~~ Combination Intercreditor Agreement. For purposes of exercising any rights that the holder of the Mortgage Note for any Mortgage Loan in a Loan Combination may have under the related Intercreditor Agreement, the Subordinate Class Representative shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Intercreditor Agreement to effect such designation. (e) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall provide each Companion Loan Holder and, if applicable, related Non-Directing Holder (or its designee or representative) to the extent required hereunder to be provided to Certificateholders or to the Subordinate Class Representative, within the same time frame it is required to provide such information and materials to the Certificateholders or the Subordinate Class Representative, as applicable, hereunder (1) with copies of each financial statement received by the Master Servicer pursuant to the terms of the related Mortgage Loan Documents, (2) with copies of any notice of default sent to the Borrower and (3) subject to the terms of the related Mortgage Loan Documents, copies of any other documents relating to the Loan Combination, including, without limitation, property inspection reports, loan servicing statements, Borrower requests, asset status reports, any other information delivered by the Master Servicer to the Subordinate Class Representative and copies of any other notice, information or report that it is required to provide to the Subordinate Class Representative pursuant to this Agreement with respect to any “major decisions” or the implementation of any recommended actions outlined in an Asset Status Report relating to such Loan Combination. Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means. (f) ~~With respect~~ To the extent not otherwise expressly provided for herein, the Special Servicer shall provide to each ~~Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall: (i) consult with the related Companion~~ B-Note Loan Holder (or its ~~designee or representative) on a strictly non-binding basis~~designee, ~~to the extent that such Companion Loan Holder (or its designee or representative) requests consultation~~ with respect to ~~any “major decision” set forth in~~ the related ~~Intercreditor Agreement~~ B-Note Non-Trust Loan or ~~the implementation of~~ any ~~recommended actions outlined in an Asset Status Report relating~~ related Loan Combination REO Property, subject to the ~~Loan Combination~~same conditions and restrictions on the distribution of information as apply with respect to reports, documents and other information with respect to ~~consider alternative actions recommended by such Companion Loan Holder (or its designee or representative); provided~~ the Trust Mortgage Loans, the same reports, documents and other information that ~~after~~ the ~~expiration of a period of ten (10) Business Days from~~ Special Servicer provides to the ~~delivery~~ Trustee with respect to the related ~~Companion~~ A-Note Trust Mortgage Loan ~~Holder (~~or its designee or representative) of written notice of a proposed action, together with copies of the related notice, information or report, the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the applicable Companion Loan Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the foregoing non-binding consultation rights of the Companion Loan Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan Holder. In no event shall the Master Servicer or the Special Servicer be obligated at any time to follow or take any alternative actions recommended by the Companion Loan Holder; and (ii) in addition to the foregoing non-binding consultation rights, the Companion Loan Holder shall have the right to annual meetings with the Master Servicer or the Special Servicer at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related Loan Combination ~~are discussed.~~REO Property, and on a concurrent basis. The Trustee and the Special Servicer shall each provide or make available to each B-Note Loan Holder or its designee, with respect to the related

Appears in 1 contract

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

Certain Matters Regarding the Loan Combinations. (a) ~~With respect to~~ Glendale Galleria Loan ~~Combinations~~Combination. (i) The parties hereto, ~~except for those duties to be performed by~~the Plurality Subordinate Certificateholder, by its acceptance of its rights and obligations set forth herein, and ~~notices~~ each Certificateholder, by its acceptance of a Certificate, hereby acknowledge the rights of the Glendale Galleria Subordinate Noteholders, upon the occurrence of certain specified events under the Glendale Galleria Intercreditor Agreement, to ~~be furnished by~~purchase the Glendale Galleria Trust Mortgage Loan from the Trust, subject to the terms, conditions and limitations set forth in, and at the price specified in, the ~~Trustee under this~~ related Loan Combination Intercreditor Agreement, and the parties hereto agree to take such actions contemplated by the related Loan Combination Intercreditor Agreement as may be expressly contemplated thereby, or otherwise reasonably necessary, to allow a Glendale Galleria Subordinate Noteholder to purchase the related Glendale Galleria Trust Mortgage Loan from the Trust. Such purchase right shall be superior to the corresponding Purchase Option set forth in Section 3.18(c)). (ii) In connection with any purchase of the Glendale Galleria Trust Mortgage Loan by a Glendale Galleria Non-Trust Noteholder pursuant to the Glendale Galleria Intercreditor Agreement, the Master Servicer or the Special ~~Servicer~~Servicer shall (i) if it receives the "Defaulted Mortgage Loan Purchase Price" (as defined in the Glendale Galleria Intercreditor Agreement) and/or any other amounts payable in connection with the purchase, deposit same, or remit same to the Master Servicer for deposit, as applicable, ~~shall perform such duties~~ into the Collection Account, and ~~furnish such notices~~so notify the Trustee; and (ii) subject to Section 3.01(g), ~~reports and information on behalf of the Trust Fund as may be the obligation of the Trust under~~ deliver the related Intercreditor Agreement. (b) The Master Servicer shall maintain a register (the “Companion Loan Holder Register”) on which the Master Servicer shall record the names and addresses of the Companion Loan Holders and wire transfer instructions for such Companion Loan Holders from time to time, Servicing File to the ~~extent such information is provided in writing to~~ Person effecting the ~~Master Servicer by the related Companion Loan Holder~~purchase or its designee. ~~Upon the transfer of any Companion Loan~~In addition, ~~each subsequent Companion Loan Holder has agreed to inform the Master Servicer of~~ upon its name and address and of any transfer thereof by delivering a copy of an assignment and assumption agreement pursuant to the related Intercreditor Agreement. Additionally, each Companion Loan Holder shall inform the Master Servicer of its taxpayer identification number and wiring instructions. The name, address, tax identification number, and wiring instructions of each initial Companion Loan Holder as of the Closing Date is set forth on Schedule X hereto. The Master Servicer shall be entitled to conclusively rely upon the information set forth on Schedule X hereto or delivered by any Companion Loan Holder until it receives written notice of transfer or of any change in information. Upon receipt of a ~~written request~~ Request for Release from any party hereto, the Master Servicer shall provide a current list of Companion Loan Holders, together with contact information for the Companion Loan Holders. In no event shall the Master Servicer be obligated to pay any party the amounts payable to a Companion Loan Holders hereunder other than the Person listed as the applicable Companion Loan Holders on the Companion Loan Holder Register. In the event that a Companion Loan Holder transfers the related Companion Loan without notice to the Master Servicer, the ~~Master Servicer~~ Trustee shall: (i) deliver the Mortgage File to the Person effecting the purchase or its designee; and (ii) execute and deliver such endorsements, assignments and instruments of transfer as shall ~~have no liability whatsoever for any misdirected payment on such Companion~~ be provided to it and are reasonably necessary to vest ownership of the Glendale Galleria Trust Mortgage Loan ~~and shall have no obligation to recover and redirect such payment. The Master Servicer shall promptly provide~~ in the ~~names and addresses of any Companion Loan Holders to any party hereto, and any such party or successor may~~appropriate transferee, without ~~further investigation~~recourse, ~~conclusively rely upon such information. The Master Servicer shall have no liability to any Person for the provision of any such names and addresses~~representations or warranties. (ciii) With respect to any Loan Combination, the Subordinate Class Representative shall be entitled to exercise the consent rights to the extent set forth in the applicable Intercreditor Agreement, in accordance with the terms of the related Intercreditor Agreement and this Agreement. (d) The Special Servicer (if any Companion Loan is a Specially Serviced Mortgage Loan or has become an REO Mortgage Loan) or the Master Servicer (with respect to any Companion Loan that is not a Specially Serviced Mortgage Loan), as applicable, shall take all actions relating to the servicing and/or administration of, and the preparation and delivery of reports and other information with respect to, the Loan Combination related to any Companion Loan or any related REO Property required to be performed by the holder of the related Mortgage Loan or contemplated to be performed by a servicer, in any case pursuant to and as required by the related Intercreditor Agreement. In addition notwithstanding anything herein to the contrary, the following considerations shall apply with respect to the servicing of a Companion Loan: (i) none of the Master Servicer, the Special Servicer or the Trustee shall make any P&I Advance with respect to the Companion Loan; and (ii) the Master Servicer and the Special Servicer shall each consult with and obtain the consent of the related Companion Loan Holder(s) to the extent required by the related Intercreditor Agreement. If any Companion Loan or any portion thereof or any particular payments thereon are included in a REMIC or a “grantor trust” (within the meaning of the Grantor Trust Provisions), then neither the Master Servicer nor the Special Servicer shall knowingly take any action that would result in the equivalent of an Adverse REMIC Event with respect to such REMIC or adversely affect the tax status of such grantor trust as a grantor trust. The parties hereto acknowledge that ~~a Companion Loan Holder~~ each Non-Trust Noteholder shall not (1) owe any fiduciary duty to the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer or any Certificateholder or (2) have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any action pursuant to the related Loan Combination Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that ~~a Companion Loan Holder~~ each Non-Trust Noteholder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the ~~interests~~ interest of the Certificateholders and shall be deemed to have agreed to take no action against a ~~Companion Loan Holder~~ Non-Trust Noteholder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates. . (iv) The Certificate Administrator (on behalf of the Trustee) and the Master Servicer shall comply with the last paragraph of Section 3.6 of the Glendale Galleria Note A Intercreditor Agreement. (b) A/B Loan Combination. (i) With respect to each A/B Loan Combination, the parties ~~hereto recognize~~ hereto, the Plurality Subordinate Certificateholder, by its acceptance of its rights and obligations set forth herein, and each Certificateholder, by its acceptance of a Certificate, hereby acknowledge the ~~respective~~ rights of ~~each Companion Loan Holder~~ the related B-Noteholder, upon the occurrence of certain specified events under the related Loan Combination Intercreditor Agreement~~. Each of~~ , to purchase the ~~rights of a Companion~~ related Trust Mortgage Loan ~~Holder under or contemplated by this Section 3.26(d) may be exercisable by a designee thereof on its behalf; provided that~~ from the ~~Master Servicer~~Trust, subject to the terms, conditions and limitations set forth in, and at the price specified in, the ~~Special Servicer~~related Loan Combination Intercreditor Agreement, ~~the Certificate Administrator~~ and the ~~Trustee are provided with written notice~~ parties hereto agree to take such actions contemplated by the related ~~Companion~~ Loan ~~Holder of~~ Combination Intercreditor Agreement as may be expressly contemplated thereby, or otherwise reasonably necessary, to allow such ~~designation~~ B-Noteholder to purchase the related Trust Mortgage Loan from the Trust. Such purchase right shall be superior to the corresponding Purchase Option set forth in Section 3.18(c)). (~~upon which such party may conclusively rely~~ii) ~~and the contact details~~ With respect to each A/B Loan Combination, in connection with any purchase of the ~~designee. If any Person purchases~~ related Trust Mortgage Loan by the related ~~Mortgage~~ B-Noteholder pursuant to the related Loan ~~as a~~ Combination Intercreditor Agreement, the Master Servicer or the Special Servicer shall (i) if it receives the "Defaulted Mortgage Loan ~~pursuant to Section 3.18, then~~ Purchase Price" (~~subject to~~ as defined in the related Loan Combination Intercreditor Agreement) the Person effecting the purchase must also pay and/or reimburse to the parties hereto the respective amounts then currently due and owing to them hereunder with respect to the related Companion Loan(s) that, pursuant to this Agreement, would not otherwise have been payable out of the applicable purchase price and/or any other amounts payable in connection with ~~such purchase (~~the purchase, deposit same, or ~~if payable out of such purchase price and/or other amounts, remain unpaid after such application) and that, pursuant~~ remit same to the related Intercreditor Agreement, would otherwise have been payable out of future collections on such Companion Loan. Notwithstanding anything herein to the contrary, any such purchase shall be subject to such reimbursements. Any reference to servicing any of the Mortgage Loans in accordance with any of the related Mortgage Loan Documents (including the related Mortgage Note and Mortgage) shall also mean, in the case of a Loan Combination, in accordance with the related Intercreditor Agreement. For purposes of exercising any rights that the holder of the Mortgage Note for any Mortgage Loan in a Loan Combination may have under the related Intercreditor Agreement, the Subordinate Class Representative shall be the designee of the Trust, as such noteholder, and the Trustee shall take such actions as may be necessary under the related Intercreditor Agreement to effect such designation. (e) With respect to each Loan Combination, the Master Servicer ~~or the Special Servicer~~for deposit, as applicable, ~~shall provide each Companion~~ into the related Loan ~~Holder and~~Combination Custodial Account, ~~if applicable~~and so notify the Trustee; and (ii) subject to Section 3.01(g), deliver the related ~~Non-Directing Holder (~~Servicing File to the Person effecting the purchase or its ~~designee or representative~~designee. In addition, upon its receipt of a Request for Release from the Master Servicer, the Trustee shall: (i) deliver the Mortgage File to the ~~extent required hereunder to~~ Person effecting the purchase or its designee; and (ii) execute and deliver such endorsements, assignments and instruments of transfer as shall be provided to ~~Certificateholders~~ it and are reasonably necessary to vest ownership of the related Trust Mortgage Loan in the appropriate transferee, without recourse, representations or to the Subordinate Class Representative, within the same time frame it is required to provide such information and materials to the Certificateholders or the Subordinate Class Representative, as applicable, hereunder warranties. (iii) The parties hereto acknowledge that each B-Noteholder shall not (1) ~~with copies of each financial statement received by~~ owe any fiduciary duty to the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer ~~pursuant to the terms of the related Mortgage Loan Documents,~~ or any Certificateholder or (2) ~~with copies~~ have any liability to the Trustee or the Certificateholders for any action taken, or for refraining from the taking of any notice of default sent to the Borrower and (3) subject to the terms of the related Mortgage Loan Documents, copies of any other documents relating to the Loan Combination, including, without limitation, property inspection reports, loan servicing statements, Borrower requests, asset status reports, any other information delivered by the Master Servicer to the Subordinate Class Representative and copies of any other notice, information or report that it is required to provide to the Subordinate Class Representative action pursuant to this Agreement with respect to any “major decisions” or the implementation of any recommended actions outlined in an Asset Status Report relating to such Loan Combination. Any copies to be furnished by the Master Servicer or the Special Servicer may be furnished by hard copy or electronic means. (f) With respect to each Loan Combination, the Master Servicer or the Special Servicer, as applicable, shall: (i) consult with the related Companion Loan Holder (or its designee or representative) on a strictly non-binding basis, to the extent that such Companion Loan Holder (or its designee or representative) requests consultation with respect to any “major decision” set forth in the related Intercreditor Agreement or the implementation of any recommended actions outlined in an Asset Status Report relating to the Loan Combination, and to consider alternative actions recommended by such Companion Loan Holder (or its designee or representative); provided that after the expiration of a period of ten (10) Business Days from the delivery to the related Companion Loan Holder (or its designee or representative) of written notice of a proposed action, together with copies of the related notice, information or report, the Master Servicer or Special Servicer, as applicable, shall no longer be obligated to consult with the applicable Companion Loan Holder (or its designee or representative) (unless the Master Servicer or Special Servicer, as applicable, proposes a new course of action that is materially different from the action previously proposed, in which case such ten (10) Business Day period shall begin anew from the date of such proposal and delivery of all information relating thereto). Notwithstanding the foregoing non-binding consultation rights of the Companion Loan Holder, the Master Servicer or the Special Servicer, as applicable, may take any “major decision” set forth in the related Intercreditor Agreement or any action set forth in the Asset Status Report before the expiration of the aforementioned ten (10) Business Day period if the Master Servicer or the Special Servicer, as applicable, determines that immediate action with respect thereto is necessary to protect the interests of the Certificateholders and the related Companion Loan Holder. In no event shall the Master Servicer or the Special Servicer be obligated at any time to follow or take any alternative actions recommended by the Companion Loan Holder; and (ii) in addition to the foregoing non-binding consultation rights, the Companion Loan Holder shall have the right to annual meetings with the Master Servicer or the Special Servicer at the offices of the Master Servicer or the Special Servicer, as applicable, upon reasonable notice and at times reasonably acceptable to the Master Servicer or the Special Servicer, as applicable, in which servicing issues related to the related Loan Combination ~~are discussed~~Intercreditor Agreement or the giving of any consent or for errors in judgment. Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have confirmed its understanding that each B-Noteholder (i) may take or refrain from taking actions that favor its interests or the interests of its affiliates over the Certificateholders, (ii) may have special relationships and interests that conflict with the interest of the Certificateholders and shall be deemed to have agreed to take no action against a Non-Trust Noteholder or any of its officers, directors, employees, principals or agents as a result of such special relationships or conflicts, and (iii) shall not be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its affiliates.

Appears in 1 contract

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

Common use of Certain Matters Regarding the Loan Combinations Clause in Contracts