Common use of Commercial Mortgage Loans Clause in Contracts

Commercial Mortgage Loans. (a) Except with respect to any Commercial Mortgage Loan withdrawn by the Beneficiary or the Direct Insurer in accordance with the terms hereof, the Grantor or the Direct Insurer, as applicable, shall have the sole and exclusive right, power and authority to service, administer, manage, liquidate, deal with, issue or withhold any consents or waivers, amend, modify, extend, or make any other decisions in respect of any Commercial Mortgage Loans in any manner that it shall choose, subject only to any limitations set forth in this Agreement, the applicable Servicing Agreement or in any other related agreement affecting the Commercial Mortgage Loans, as applicable; provided, that the Trustee shall be entitled to receive on behalf of the Grantor all payments made in respect of the Commercial Mortgage Loans (whether from any servicer, borrower or other Person), including principal and interest payments, proceeds and other income arising from or under such Commercial Mortgage Loans (after retention by the related servicer of such servicer’s expenses, required escrows and reserves to the extent contemplated pursuant to the terms of the applicable loan agreement and Servicing Agreement), as applicable, and to retain, use, enjoy the same subject only to the limitations set forth in this Agreement, the applicable Servicing Agreement and in any other related agreement affecting the Commercial Mortgage Loans. Except with respect to any Commercial Mortgage withdrawn by the Beneficiary or the Direct Insurer in accordance with the terms hereof, the Grantor shall have the sole and exclusive right, power and authority to make decisions and take other actions in respect of any Commercial Mortgage Loans (and any related Underlying Assets) under any servicing agreement, loan document and any other related agreement affecting the Commercial Mortgage Loans or the related Underlying Assets, in each case, as fully and completely as if this Agreement had not been executed and delivered; provided, however, that the sale, transfer or assignment of any such Commercial Mortgage Loan shall only be effectuated by substitution, exchange and withdrawal pursuant to the terms of this Agreement. The Grantor shall have the exclusive power and authority, acting alone or through sub-servicers, to do any and all things in connection with such servicing, administration, management and liquidation of the Commercial Mortgage Loans which it may deem necessary or desirable to maximize recoveries with respect thereto, subject to the limitations contained in this Agreement and any related agreements. Without limiting the generality of the foregoing, the Grantor shall continue, and is hereby authorized and empowered hereunder, to prepare and file any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien on any Underlying Assets. Notwithstanding anything to the contrary contained in this Agreement, the Trustee shall not date, endorse, record or transfer any Loan Assignment Document except in accordance with the written directions of the Grantor or the applicable investment manager or, (i) upon receipt of a Beneficiary Request for Withdrawal, in accordance with the written direction of the Beneficiary and (ii) upon receipt of a Direct Insurer Request for Withdrawal, in accordance with the written direction of the Direct Insurer. (b) The Trustee (not in its individual capacity but solely as Trustee hereunder), upon receipt of a written request from the Grantor, shall execute and deliver any powers of attorney and other documents provided to it which the Grantor determines, in the exercise of its reasonable judgment, are necessary in order to enable any servicer to carry out its duties under the applicable Servicing Agreement or any other servicing agreement, or to enable the Grantor to take appropriate action in respect of the ownership, assignment, transfer and liquidation of the Commercial Mortgage Loans (and any related Underlying Assets), as applicable, subject to the limitations in this Agreement. The Trustee acknowledges that the Grantor may (in its sole discretion), from time to time, execute and deliver a limited power of attorney in order to enable a servicer to carry out their duties under the applicable Servicing Agreement relating to any Commercial Mortgage Loan or any related Underlying Assets. The authority of the Grantor or any servicer shall include the power to (i) enforce, modify, amend, renew or extend the Commercial Mortgage Loans or the Underlying Assets, (ii) grant or withhold any consents or waivers under or in respect of the Commercial Mortgage Loans or the Underlying Assets, (iii) file and collect insurance claims, (iv) release any Underlying Asset or any other collateral or any party from any liability on or with respect to any of the Commercial Mortgage Loans, (v) compromise or settle any claims of any kind or character with respect to any of the Commercial Mortgage Loans, subject to any limitations provided herein, (vi) initiate, complete or otherwise take any action with respect to a foreclosure or deed in lieu of foreclosure, on any of the Underlying Assets, (vii) repair, replace, renovate, restore and improve the Underlying Assets, (viii) negotiate and contract to sell and sell any Commercial Mortgage Loan (including through receipt of a discounted pay-off on such Asset), (ix) commence, continue, negotiate, or settle litigation relating to a Commercial Mortgage Loan or the Underlying Assets, (x) make any servicing or other advances, (xi) act as a mortgagee in possession or receiver or in any other capacity with respect to the Underlying Assets, (xii) exercise any and all rights in respect of the Commercial Mortgage Loans and the Underlying Assets, or (xiii) take any action with respect to any security document securing a Commercial Mortgage Loan, effectuate foreclosure or other conversion of the ownership of any Underlying Asset, including the employment of attorneys, the institution of legal proceedings, the acceptance of compromise proposals, the filing of claims for mortgage insurance, the collection of liquidation proceeds, seeking a receiver, appointing a new property manager and any other matter pertaining to a Commercial Mortgage Loan or an Underlying Asset. When the Grantor, in the exercise of its reasonable business judgment, finds it appropriate, it shall execute and deliver any instruments of satisfaction, cancellation, partial or full release, discharge, transfer and all other comparable instruments, with respect to the related Commercial Mortgage Loan or the Underlying Asset, as applicable, provided that the execution and delivery of such instrument is necessary in order to enable any servicer to carry out its duties under the Servicing Agreements or any related loan document. Any such action taken by the Grantor shall be subject in all respects to the terms of this Agreement (including, without limitation, Section 4 regarding substitution of Assets in the Trust Account). The Grantor may exercise all of the powers set forth herein in its own name. Upon written request of the Grantor, the Trustee shall execute and deliver any documents provided to it and reasonably requested by the Grantor in furtherance of or incidental to any of the foregoing actions. (c) The Grantor may retain a professional servicer to service the Commercial Mortgage Loans on its behalf, in furtherance of the Grantor’s exclusive right, power and authority to service, manage and administer the Commercial Mortgage Loans in the Trust Account, upon reasonable advance written notice to but without the approval or consent of the Trustee, the Beneficiary and the Direct Insurer, but subject to the rights in and requirements of the applicable Servicing Agreement, provided that the retention of such servicer shall not relieve the Grantor of any of its obligations and liabilities hereunder. The Grantor may remove any servicer under any Servicing Agreement pursuant to the terms of the applicable Servicing Agreement or such other servicing agreements and may appoint a successor servicer, without the consent or approval of, but only upon written notice of such removal and appointment to, the Trustee, the Beneficiary and the Direct Insurer. The Grantor agrees to, and shall use commercially reasonable efforts to cause the servicer to, reasonably cooperate with the Beneficiary or the Direct Insurer to assist with the transfer of servicing responsibilities to the successor servicer appointed by the Beneficiary or the Direct Insurer. In connection with any withdrawal by Beneficiary or the Direct Insurer, Grantor shall, or shall cause any such servicer to, transfer to the Beneficiary or the Direct Insurer all funds held by Grantor or such servicer with respect to such Commercial Mortgage Loan, including without limitation all collections, reserves and escrows relating to such Commercial Mortgage Loan. (d) With the exception of the Loan Assignment Documents to be delivered to the Trustee in accordance with the terms of this Agreement, the servicer shall retain and be charged with maintaining possession of all documentation and files relating to the Commercial Mortgage Loans (the “Servicing File”). Upon the deposit of any Commercial Mortgage Loan to the Trust Account, (i) the Grantor shall deliver (or cause to be delivered) to the Trustee a letter in the form attached hereto as Exhibit K, executed in blank by an authorized signatory and addressed to the applicable servicer, instructing such servicer to release the Servicing File to the Trustee or to the Beneficiary or the Direct Insurer in accordance with the terms hereof, whenever requested by the Trustee (the “Document Release Letter”), and (ii) within thirty (30) calendar days of the date of deposit, the Grantor shall provide the servicer’s list of the documents in the Servicing File to the Trustee, the Beneficiary and the Direct Insurer. The delivery of the Document Release Letter by the Grantor to the Trustee shall constitute a representation and certification by the Grantor to the Trustee, the Beneficiary and the Direct Insurer that such Document Release Letter is sufficient under the terms of the applicable Servicing Agreement to require the servicer to release the Servicing File to the Trustee without the further consent of the Grantor or any other Person. The Servicing Agreements shall not be amended, modified or supplemented in any way that adversely impacts the ability of the Trustee to obtain the Servicing File without the prior written consent of the Beneficiary and the Direct Insurer. As promptly as practicable following the date hereof, and in any event within thirty (30) days of the date hereof, the Grantor shall arrange with the servicer to separately designate the Servicing File from other documents held by the servicer for the benefit of the Grantor and provide written notice to the Trustee, the Beneficiary and the Direct Insurer when such access has been arranged. Such direct access arrangements with the servicer shall not be changed without the consent of the Beneficiary and the Direct Insurer. The Trustee acknowledges that (x) the Beneficiary may instruct the Trustee to withdraw any documents in the Servicing File in accordance with a Beneficiary Request for Withdrawal and (y) the Direct Insurer may instruct the Trustee to withdraw any documents in the Servicing File in accordance with a Direct Insurer Request for Withdrawal. (e) In order to facilitate the servicing, administration and enforcement of the Commercial Mortgage Loans by or on behalf of the Grantor, and the servicing of the Commercial Mortgage Loans by a servicer, the Grantor (if it is not using a third party servicer) or servicers may temporarily hold collections on such Commercial Mortgage Loans prior to the time they are remitted to the Trustee and may hold physical possession of any related documents or instruments. Upon written request of the Grantor to the Trustee (with a simultaneous copy to the Beneficiary and the Direct Insurer, provided the Trustee shall not be required to confirm delivery of such copy) pursuant to the terms hereof, the Trustee shall promptly release, deliver or transfer such documents and instruments as may be requested from time to time by the Grantor. The Trustee and the Grantor hereby acknowledge that the Grantor and the servicers are acting as bailees of the Trustee in holding such monies pursuant to this Agreement (with respect to the Grantor) and the applicable Servicing Agreement, and that the Grantor and the servicers are acting as the Trustee’s bailee in holding any documents or instruments released, delivered or transferred to the Grantor or any servicer pursuant to this Agreement, and any other items constituting a part of the Trust Account which from time to time come into the possession of the Grantor or any servicer; provided, however, the Trustee shall incur no liability whatsoever for any acts of the Grantor and the servicers in their capacity as bailee. (f) Each of the Trustee, Beneficiary and the Direct Insurer hereby acknowledges that the rights and obligations of the Grantor under any Servicing Agreement have not been transferred to or accepted or assumed by the Trustee and are otherwise expressly reserved by and to the Grantor to act on its own behalf and in any manner that it so chooses, without any consent or approval rights on the part of the Trustee, the Beneficiary or the Direct Insurer hereunder, subject to the terms of this Agreement and any related agreement. (g) The Grantor hereby acknowledges and agrees that the Trustee shall not have any obligations relating to any future funding commitments in respect of the Assets (including, for the avoidance of doubt, the Commercial Mortgage Loans).

Commercial Mortgage Loans. (a) Except with respect to any Commercial Mortgage Loan withdrawn by the Beneficiary or the Direct Insurer in accordance with the terms hereof, the Grantor or the Direct Insurer, as applicable, shall have the sole and exclusive right, power and authority to service, administer, manage, liquidate, deal with, issue or withhold any consents or waivers, amend, modify, extend, or make any other decisions in respect of any Commercial Mortgage Loans in any manner that it shall choose, subject only to any limitations set forth in this Agreement, the applicable Servicing Agreement or in any other related agreement affecting the Commercial Mortgage Loans, as applicable; provided, that the Trustee shall be entitled to receive on behalf of the Grantor all payments made in respect of the Commercial Mortgage Loans (whether from any servicer, borrower or other Person), including principal and interest payments, proceeds and other income arising from or under such Commercial Mortgage Loans (after retention by the related servicer of such servicer’s expenses, required escrows and reserves to the extent contemplated pursuant to the terms of the applicable loan agreement and Servicing Agreement), as applicable, and to retain, use, enjoy the same subject only to the limitations set forth in this Agreement, the applicable Servicing Agreement and in any other related agreement affecting the Commercial Mortgage Loans. Except with respect to any Commercial Mortgage withdrawn by the Beneficiary or the Direct Insurer in accordance with the terms hereof, the Grantor shall have the sole and exclusive right, power and authority to make decisions and take other actions in respect of any Commercial Mortgage Loans (and any related Underlying Assets) under any servicing agreement, loan document and any other related agreement affecting the Commercial Mortgage Loans or the related Underlying Assets, in each case, as fully and completely as if this Agreement had not been executed and delivered; provided, however, that the sale, transfer or assignment of any such Commercial Mortgage Loan shall only be effectuated by substitution, exchange and withdrawal pursuant to the terms of this Agreement. The Grantor shall have the exclusive power and authority, acting alone or through sub-servicers, to do any and all things in connection with such servicing, administration, management and liquidation of the Commercial Mortgage Loans which it may deem necessary or desirable to maximize recoveries with respect thereto, subject to the limitations contained in this Agreement and any related agreements. Without limiting the generality of the foregoing, the Grantor shall continue, and is hereby authorized and empowered hereunder, to prepare and file any and all financing statements, continuation statements and other documents or instruments necessary to maintain the lien on any Underlying Assets. Notwithstanding anything to the contrary contained in this Agreement, the Trustee shall not date, endorse, record or transfer any Loan Assignment Document except in accordance with the written directions of the Grantor or the applicable investment manager or, (i) upon receipt of a Beneficiary Request for Withdrawal, in accordance with the written direction of the Beneficiary and (ii) upon receipt of a Direct Insurer Request for Withdrawal, in accordance with the written direction of the Direct InsurerBeneficiary. (b) The Trustee (not in its individual capacity but solely as Trustee hereunder), upon receipt of a written request from the Grantor, shall execute and deliver any powers of attorney and other documents provided to it which the Grantor determines, in the exercise of its reasonable judgment, are necessary in order to enable any servicer to carry out its duties under the applicable Servicing Agreement or any other servicing agreement, or to enable the Grantor to take appropriate action in respect of the ownership, assignment, transfer and liquidation of the Commercial Mortgage Loans (and any related Underlying Assets), as applicable, subject to the limitations in this Agreement. The Trustee acknowledges that the Grantor may (in its sole discretion), from time to time, execute and deliver a limited power of attorney in order to enable a servicer to carry out their duties under the applicable Servicing Agreement relating to any Commercial Mortgage Loan or any related Underlying Assets. The authority of the Grantor or any servicer shall include the power to (i) enforce, modify, amend, renew or extend the Commercial Mortgage Loans or the Underlying Assets, (ii) grant or withhold any consents or waivers under or in respect of the Commercial Mortgage Loans or the Underlying Assets, (iii) file and collect insurance claims, (iv) release any Underlying Asset or any other collateral or any party from any liability on or with respect to any of the Commercial Mortgage Loans, (v) compromise or settle any claims of any kind or character with respect to any of the Commercial Mortgage Loans, subject to any limitations provided herein, (vi) initiate, complete or otherwise take any action with respect to a foreclosure or deed in lieu of foreclosure, on any of the Underlying Assets, (vii) repair, replace, renovate, restore and improve the Underlying Assets, (viii) negotiate and contract to sell and sell any Commercial Mortgage Loan (including through receipt of a discounted pay-off on such Asset), (ix) commence, continue, negotiate, or settle litigation relating to a Commercial Mortgage Loan or the Underlying Assets, (x) make any servicing or other advances, (xi) act as a mortgagee in possession or receiver or in any other capacity with respect to the Underlying Assets, (xii) exercise any and all rights in respect of the Commercial Mortgage Loans and the Underlying Assets, or (xiii) take any action with respect to any security document securing a Commercial Mortgage Loan, effectuate foreclosure or other conversion of the ownership of any Underlying Asset, including the employment of attorneys, the institution of legal proceedings, the acceptance of compromise proposals, the filing of claims for mortgage insurance, the collection of liquidation proceeds, seeking a receiver, appointing a new property manager and any other matter pertaining to a Commercial Mortgage Loan or an Underlying Asset. When the Grantor, in the exercise of its reasonable business judgment, finds it appropriate, it shall execute and deliver any instruments of satisfaction, cancellation, partial or full release, discharge, transfer and all other comparable instruments, with respect to the related Commercial Mortgage Loan or the Underlying Asset, as applicable, provided that the execution and delivery of such instrument is necessary in order to enable any servicer to carry out its duties under the Servicing Agreements or any related loan document. Any such action taken by the Grantor shall be subject in all respects to the terms of this Agreement (including, without limitation, Section 4 regarding substitution of Assets in the Trust Account). The Grantor may exercise all of the powers set forth herein in its own name. Upon written request of the Grantor, the Trustee shall execute and deliver any documents provided to it and reasonably requested by the Grantor in furtherance of or incidental to any of the foregoing actions. (c) The Grantor may retain a professional servicer to service the Commercial Mortgage Loans on its behalf, in furtherance of the Grantor’s exclusive right, power and authority to service, manage and administer the Commercial Mortgage Loans in the Trust Account, upon reasonable advance written notice to but without the approval or consent of the Trustee, Trustee or the Beneficiary and the Direct InsurerBeneficiary, but subject to the rights in and requirements of the applicable Servicing Agreement, provided that the retention of such servicer shall not relieve the Grantor of any of its obligations and liabilities hereunder. The Grantor may remove any servicer under any Servicing Agreement pursuant to the terms of the applicable Servicing Agreement or such other servicing agreements and may appoint a successor servicer, without the consent or approval of, but only upon written notice of such removal and appointment to, the Trustee, the Beneficiary Trustee and the Direct InsurerBeneficiary. The Grantor agrees to, and shall use commercially reasonable efforts to cause the servicer to, reasonably cooperate with the Beneficiary or the Direct Insurer to assist with the transfer of servicing responsibilities to the successor servicer appointed by the Beneficiary or the Direct InsurerBeneficiary. In connection with any withdrawal by Beneficiary or the Direct InsurerBeneficiary, Grantor shall, or shall cause any such servicer to, transfer to the Beneficiary or the Direct Insurer all funds held by Grantor or such servicer with respect to such Commercial Mortgage Loan, including without limitation all collections, reserves and escrows relating to such Commercial Mortgage Loan. (d) With the exception of the Loan Assignment Documents to be delivered to the Trustee in accordance with the terms of this Agreement, the servicer shall retain and be charged with maintaining possession of all documentation and files relating to the Commercial Mortgage Loans (the “Servicing File”). Upon the deposit of any Commercial Mortgage Loan to the Trust Account, (ia) the Grantor shall deliver (or cause to be delivered) to the Trustee a letter in the form attached hereto as Exhibit KI, executed in blank by an authorized signatory and addressed to the applicable servicer, instructing such servicer to release the Servicing File to the Trustee or to the Beneficiary or the Direct Insurer in accordance with the terms hereof, whenever requested by the Trustee (the “Document Release Letter”), and (iib) within thirty (30) calendar days of the date of deposit, the Grantor shall provide the servicer’s list of the documents in the Servicing File to the Trustee, the Beneficiary Trustee and the Direct InsurerBeneficiary. The delivery of the Document Release Letter by the Grantor to the Trustee shall constitute a representation and certification by the Grantor to the Trustee, Trustee and the Beneficiary and the Direct Insurer that such Document Release Letter is sufficient under the terms of the applicable Servicing Agreement to require the servicer to release the Servicing File to the Trustee without the further consent of the Grantor or any other Person. The Servicing Agreements shall not be amended, modified or supplemented in any way that adversely impacts the ability of the Trustee to obtain the Servicing File without the prior written consent of the Beneficiary and the Direct InsurerBeneficiary. As promptly as practicable following the date hereof, and in any event within thirty (30) days of the date hereof, the Grantor shall arrange with the servicer to separately designate the Servicing File from other documents held by the servicer for the benefit of the Grantor and provide written notice to the Trustee, Trustee and the Beneficiary and the Direct Insurer when such access has been arranged. Such direct access arrangements with the servicer shall not be changed without the consent of the Beneficiary and the Direct InsurerBeneficiary. The Trustee acknowledges that (x) the Beneficiary may instruct the Trustee to withdraw any documents in the Servicing File in accordance with a Beneficiary Request for Withdrawal and (y) the Direct Insurer may instruct the Trustee to withdraw any documents in the Servicing File in accordance with a Direct Insurer Request for Withdrawal. (e) In order to facilitate the servicing, administration and enforcement of the Commercial Mortgage Loans by or on behalf of the Grantor, and the servicing of the Commercial Mortgage Loans by a servicer, the Grantor (if it is not using a third party servicer) or servicers may temporarily hold collections on such Commercial Mortgage Loans prior to the time they are remitted to the Trustee and may hold physical possession of any related documents or instruments. Upon written request of the Grantor to the Trustee (with a simultaneous copy to the Beneficiary and the Direct InsurerBeneficiary, provided the Trustee shall not be required to confirm delivery of such copy) pursuant to the terms hereof, the Trustee shall promptly release, deliver or transfer such documents and instruments as may be requested from time to time by the Grantor. The Trustee and the Grantor hereby acknowledge that the Grantor and the servicers are acting as bailees of the Trustee in holding such monies pursuant to this Agreement (with respect to the Grantor) and the applicable Servicing Agreement, and that the Grantor and the servicers are acting as the Trustee’s bailee in holding any documents or instruments released, delivered or transferred to the Grantor or any servicer pursuant to this Agreement, and any other items constituting a part of the Trust Account which from time to time come into the possession of the Grantor or any servicer; provided, however, the Trustee shall incur no liability whatsoever for any acts of the Grantor and the servicers in their capacity as bailee. (f) Each of the Trustee, Beneficiary Trustee and the Direct Insurer Beneficiary hereby acknowledges that the rights and obligations of the Grantor under any Servicing Agreement have not been transferred to or accepted or assumed by the Trustee and are otherwise expressly reserved by and to the Grantor to act on its own behalf and in any manner that it so chooses, without any consent or approval rights on the part of the Trustee, Trustee or the Beneficiary or the Direct Insurer hereunder, subject to the terms of this Agreement and any related agreement. (g) The Grantor hereby acknowledges and agrees that the Trustee shall not have any obligations relating to any future funding commitments in respect of the Assets (including, for the avoidance of doubt, the Commercial Mortgage Loans).