Control and Consultation. (a) For so long as no Control Termination Event has occurred and is continuing with respect to a Collateral Interest (other than Collateral Interests that are Non-CLO Controlled Collateral Interests), the Subordinate Class Representative (or, at all times with respect to a Non-CLO Controlled Collateral Interest, the related Directing Holder) shall have the right to consent to any Major Decisions with respect to a Collateral Interest and the related underlying Commercial Real Estate Loan, as the Subordinate Class Representative (or, with respect to a Non-CLO Controlled Collateral Interest, the related Directing Holder) may deem advisable or as to which provision is otherwise made herein, consult with and direct the Servicer and the Special Servicer with respect to any other actions to be taken or not taken with respect to such Collateral Interest and the related underlying Serviced Commercial Real Estate Loan that relates to the Servicing or Special Servicing obligations under this Agreement, in each case subject to the Servicer’s or Special Servicer’s, as applicable, compliance with the Servicing Standard, and direct the Special Servicer to (i) enter into any Significant Modification with respect to a Serviced Commercial Real Estate Loan for which the Significant Modification Criteria are satisfied (as determined by the Subordinate Class Representative), (ii) enter into any Administrative Modification and (iii) enter into any Pre-Approved Modification. The evaluation of and entering into any Pre-Approved Modification, Significant Modification or Administrative Modification shall not be subject to the Servicing Standard. (b) Both the Servicer (in the case of a Performing Loan) and the Special Servicer may communicate directly with the Obligors in connection with any Major Decision or Other Borrower Request. If the Servicer receives any request for a Major Decision, Pre-Approved Modification or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Loans) on the Serviced Commercial Real Estate Loans that are not Specially Serviced Loans, the Servicer shall promptly forward such request to the Special Servicer for analysis (other than for Pre-Approved Modifications, Administrative Modifications or Significant Modifications) and processing and the Servicer shall have no further liability or duty with respect thereto. If the Special Servicer receives any such request from an Obligor (or from the Servicer), (other than for Pre-Approved Modifications, Administrative Modifications or Significant Modifications), the Special Servicer shall analyze and process the request subject to the terms of this Section 3.23. After a Major Decision, Pre-Approved Modification or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Loans) is approved, the Special Servicer shall notify the Servicer of such approval and when the related transaction closes the Special Servicer shall promptly provide the Servicer with the information necessary for the Servicer to update its records to reflect the terms of the transaction. For so long as no Control Termination Event has occurred and is continuing with respect to a Collateral Interest (and at any time in case of a Non-CLO Controlled Collateral Interest), the Special Servicer (i) shall promptly send the applicable Directing Holder a copy of its written recommendation and analysis of any proposed Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto, and (ii) shall obtain the consent of the applicable Directing Holder prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. If the applicable Directing Holder objects to such proposed Major Decision, it must object in writing to the Special Servicer and propose an alternative course of action within ten (10) Business Days after receipt of the written recommendation and analysis described above. In the event that the Special Servicer has requested consent for a Major Decision from the applicable Directing Holder and such Directing Holder fails to object to the Special Servicer within such ten (10) Business Day period then the Special Servicer shall take such action as it deems appropriate in accordance with the Servicing Standard. In the event that the Special Servicer determines that the applicable Directing Holder’s alternative proposal is in accordance with the Servicing Standard, then the Special Servicer shall take such actions as proposed by such Directing Holder. In the event that the Special Servicer determines that the applicable Directing Holder’s alternative proposal is not in accordance with the Servicing Standard, or if the applicable Directing Holder fails to give notice of the actions to be taken within such ten (10) Business Day period, then the Special Servicer shall not be bound by such Directing Holder’s determination with respect to such action and shall take such action or refrain from taking such action, as applicable, as the Special Servicer determines is in accordance with the Servicing Standard. (c) Following the occurrence of and during the continuation of a Control Termination Event with respect to a Serviced Commercial Real Estate Loan, the Operating Advisor shall consult with Special Servicer, with respect to making or refraining from making any Major Decision. The Special Servicer (i) shall promptly send the Operating Advisor a copy of its written recommendation and analysis for each Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto in a timely manner, including without limitation, any related Asset Status Report required to be delivered pursuant to Section 3.16(e) hereof (collectively, “Decision Information”), and (ii) shall consult, on a non-binding basis, with the Operating Advisor prior to taking or refraining from making any Major Decision or denying any waiver or consent with regard to a Major Decision. The Operating Advisor shall consult with Special Servicer with respect to such decision and, if it determines that an alternative course of action should be considered by the Special Servicer, propose such alternative course(s) of action within ten (10) Business Days of receipt of the Decision Information from the Special Servicer. The Special Servicer shall consider any recommendations or proposals from the Operating Advisor and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Operating Advisor does not propose alternative courses of action or otherwise does not consult with Special Servicer within ten (10) Business Days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision. (d) Following the occurrence of and during the continuation of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event (other than in case of any Non- Serviced Commercial Real Estate Loan), the Special Servicer shall consult, on a non-binding basis, with the Subordinate Class Representative prior to making or refraining from making any Major Decision with respect to such Collateral Interest or as to which provision is otherwise made herein. The Special Servicer (i) shall promptly send the Subordinate Class Representative notice of and a copy of any written recommendation and analysis for such action together with all related Decision Information, and (ii) shall consult, on a non-binding basis, with the Subordinate Class Representative prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. The Special Servicer shall consider any recommendations or proposals from Subordinate Class Representative and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Subordinate Class Representative does not propose alternative courses of action or otherwise does not consult with the Special Servicer within ten (10) days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision. (e) After the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event (other than in case of any Non-Serviced Commercial Real Estate Loan), the Special Servicer shall also consult, on a non-binding basis, with the Subordinate Class Representative in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the Subordinate Class Representative shall propose alternative courses of action within ten (10) Business Days of receipt of each such Asset Status Report. The Special Servicer shall consider any such proposals from the Subordinate Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In addition, notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Control Termination Event with respect to a Serviced Commercial Real Estate Loan, the Special Servicer shall consult with the Operating Advisor in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the Operating Advisor shall, if it determines that an alternative course of action should be considered by the Special Servicer, propose, by written notice, such alternative course(s) of action within ten (10) Business Days of receipt of each such Asset Status Report; provided that the Special Servicer shall have no obligation to accept or implement in whole or in part any such suggested alternative. In the event that either the Operating Advisor or the applicable Directing Holder, as applicable, does not propose alternative courses of action within ten (10) Business Days after receipt of such Asset Status Report, the Special Servicer shall implement the Asset Status Report as proposed by the Special Servicer. (f) Subject to Sections 3.23(i) and 3.23(j), the Special Servicer shall recognize the consent and consultation rights of any Companion Participation Holder in accordance with the applicable Participation Agreement. (g) No Directing Holder shall owe any fiduciary duty to the Note Administrator, the Trustee, the Operating Advisor, the Servicer, the Special Servicer or any Noteholder. No Directing Holder shall have any duty or liability to any Noteholder for any action taken, or for refraining from the taking of any action or the giving of any consent or failure to give any consent in good faith pursuant to this Agreement or any such error in judgment. By its acceptance of a Note, each Noteholder shall be deemed to have confirmed its agreement that (i) any Directing Holder may take or refrain from taking actions, or give or refrain from giving any consents or consult and make recommendations or refrain from consulting or making recommendations with respect to the Commercial Real Estate Loans, that favor the interests of any Noteholder (or holder of a Companion Participation, as applicable) over any other Noteholder, (ii) any Directing Holder may have special relationships and interests that conflict with the interests of any Noteholder, (iii) it shall take no action against any Directing Holder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and (iv) no Directing Holder shall be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misconduct or to have recklessly disregarded any exercise of its rights or obligations by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of the Noteholders. (h) The Note Administrator shall: (i) upon written request (which includes via electronic mail) confirm for the Servicer, the Special Servicer, the Trustee and the Operating Advisor the occurrence or cessation of any Control Shift Event, Control Termination Event or Consultation Termination Event, (ii) upon any change in the Directing Holder or upon request, provide the name of the applicable Directing Holder to the Operating Advisor, the Trustee, the Servicer and the Special Servicer, and (iii) upon any change in the Operating Advisor or upon request, provide the name of any successor Operating Advisor to the applicable Directing Holder, the Servicer and the Special Servicer. (i) The Servicer, the Special Servicer, the Trustee or the Operating Advisor may from time to time request in writing (which includes via electronic mail) that the Note Administrator provide confirmation as to whether a Control Shift Event, Control Termination Event or a Consultation Termination Event has occurred in the twelve (12) months preceding any such request or any other period specified in such request. The Note Administrator shall respond to any such request within 10 calendar days. (j) For the avoidance of doubt, in the event the Servicer or the Special Servicer, as applicable, determines, in accordance with the Servicing Standard, that any direction or refusal to consent by the applicable Directing Holder or any advice from the applicable Directing Holder, the Operating Advisor or any Companion Participation Holder would cause the Servicer or the Special Servicer, as applicable, to violate applicable law, the terms of the applicable Loan Documents, or the terms of this Agreement, including without limitation, the Servicing Standard, the Servicer or the Special Servicer, as applicable, shall disregard such direction or refusal to consent or advice, as the case may be, and notify the applicable Directing Holder, the Operating Advisor or the applicable Companion Participation Holder of its determination, along with a reasonably detailed explanation of the basis therefor. (k) To the extent that the applicable Directing Holder has the right hereunder to give its consent or make a decision with respect to any servicing matter, in the event that the Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard that immediate action is necessary to protect the interests of the Issuer, the Servicer or the Special Servicer, as applicable, may take such action without waiting for the applicable Directing Holder’s response.

Appears in 1 contract

Samples: Servicing Agreement (Granite Point Mortgage Trust Inc.)

Control and Consultation. (a) ~~For so long as no Control Termination Event has occurred and is continuing with respect to a~~ The Collateral ~~Interest (other than Collateral Interests that are Non-CLO Controlled Collateral Interests), the Subordinate Class Representative~~ Manager (or, ~~at all times~~ with respect to a Non-CLO Controlled Collateral Interest, the holder of the related ~~Directing Holder~~Controlling Companion Participation) shall have the right to consent to any Major Decisions with respect to a Collateral Interest and the related underlying Commercial Real Estate Loan, as the ~~Subordinate Class Representative~~ Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related ~~Directing Holder~~Controlling Companion Participation) may deem advisable or as to which provision is otherwise made herein, consult with and direct the Servicer and the Special Servicer with respect to any other actions to be taken or not taken with respect to such Collateral Interest and the related underlying Serviced Commercial Real Estate Loan that relates to the Servicing or Special Servicing obligations under this Agreement, in each case subject to the Servicer’s or Special Servicer’s, as applicable, compliance with the Servicing Standard, and direct the Special Servicer to (i) enter into any Significant Modification with respect to a Serviced Commercial Real Estate Loan for which the Significant Modification Criteria are satisfied (as determined by the Subordinate Class Representative), (ii) enter into any Administrative Modification and (iii) enter into any Pre-Approved Modification. The evaluation of and entering into any Pre-Approved Modification, Significant Modification or Administrative Modification shall not be subject to the Servicing Standard. (b) Both the Servicer (in the case of a Performing Loan) and the Special Servicer may communicate directly with the Obligors in connection with any Major Decision or Other Borrower Request. If the Servicer receives any request for a Major ~~Decision, Pre-Approved Modification~~ Decision or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Loans) on the Serviced Commercial Real Estate Loans that are not Specially Serviced Loans, the Servicer shall promptly forward such request to the Special Servicer for analysis ~~(other than for Pre-Approved Modifications, Administrative Modifications or Significant Modifications)~~ and processing and the Servicer shall have no further liability or duty with respect thereto. The Special Servicer shall send the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) a copy of any written request of an Obligor for a decision that is a Major Decision or any written notification of the occurrence of an event or circumstance that requires the making of a Major Decision within two (2) Business Days of receipt thereof. If the Collateral Manager receives any request for a Major Decision on the Commercial Real Estate Loans, the Collateral Manager shall promptly, and in any event within two (2) Business Days, forward such request to the Special Servicer for analysis and processing. If the Special Servicer receives any such request from an Obligor (or from the ~~Servicer), (other than for Pre-Approved Modifications, Administrative Modifications~~ Servicer or ~~Significant Modifications),~~ the Collateral Manager) the Special Servicer shall analyze and process the request subject to the terms of this Section 3.23. The Special Servicer (i) shall promptly upon its completion thereof send the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) a copy of its written recommendation and analysis of any proposed Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto, and (ii) shall obtain the consent of the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. If the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) objects to such proposed Major Decision, it must object in writing to the Special Servicer and propose an alternative course of action within ten (10) Business Days after receipt of the written recommendation and analysis described above. In the event that the Special Servicer has requested consent for Major Decisions from the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) and the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) fails to object to the Special Servicer within such ten (10) Business Day period then the Special Servicer shall take such action as it deems appropriate in accordance with the Servicing Standard. In the event that the Special Servicer determines that the Collateral Manager’s (or, with respect to a Non-CLO Controlled Collateral Interest, the holder’s of the related Controlling Companion Participation’s) alternative proposal is in accordance with the Servicing Standard, then the Special Servicer shall take such actions as proposed by the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation). In the event that the Special Servicer determines that the Collateral Manager’s (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation’s) alternative proposal is not in accordance with the Servicing Standard, or if the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) fails to give notice of the actions to be taken within such ten (10) Business Day period, then the Special Servicer shall not be bound the Collateral Manager’s (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation’s) determination with respect to such action and shall take such action or refrain from taking such action, as applicable, as the Special Servicer determines is in accordance with the Servicing Standard. After a Major ~~Decision, Pre-Approved Modification~~ Decision or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Loans) is approved, the Special Servicer shall notify the Servicer of such approval and when the related transaction closes the Special Servicer shall promptly provide the Servicer with the information necessary for the Servicer to update its records to reflect the terms of the transaction. For so long as no Control Termination Event has occurred and is continuing with respect to a Collateral Interest (and at any time in case of a Non-CLO Controlled Collateral Interest), the Special Servicer (i) shall promptly send the applicable Directing Holder a copy of its written recommendation and analysis of any proposed Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto, and (ii) shall obtain the consent of the applicable Directing Holder prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. If the applicable Directing Holder objects to such proposed Major Decision, it must object in writing to the Special Servicer and propose an alternative course of action within ten (10) Business Days after receipt of the written recommendation and analysis described above. In the event that the Special Servicer has requested consent for a Major Decision from the applicable Directing Holder and such Directing Holder fails to object to the Special Servicer within such ten (10) Business Day period then the Special Servicer shall take such action as it deems appropriate in accordance with the Servicing Standard. In the event that the Special Servicer determines that the applicable Directing Holder’s alternative proposal is in accordance with the Servicing Standard, then the Special Servicer shall take such actions as proposed by such Directing Holder. In the event that the Special Servicer determines that the applicable Directing Holder’s alternative proposal is not in accordance with the Servicing Standard, or if the applicable Directing Holder fails to give notice of the actions to be taken within such ten (10) Business Day period, then the Special Servicer shall not be bound by such Directing Holder’s determination with respect to such action and shall take such action or refrain from taking such action, as applicable, as the Special Servicer determines is in accordance with the Servicing Standard. (c) Following the occurrence of and during the continuation of a Control Termination Event with respect to a Serviced Commercial Real Estate Loan, the Operating Advisor shall consult with Special Servicer, with respect to making or refraining from making any Major Decision. The Special Servicer (i) shall promptly send the Operating Advisor a copy of its written recommendation and analysis for each Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto in a timely manner, including without limitation, any related Asset Status Report required to be delivered pursuant to Section 3.16(e) hereof (collectively, “Decision Information”), and (ii) shall consult, on a non-binding basis, with the Operating Advisor prior to taking or refraining from making any Major Decision or denying any waiver or consent with regard to a Major Decision. The Operating Advisor shall consult with Special Servicer with respect to such decision and, if it determines that an alternative course of action should be considered by the Special Servicer, propose such alternative course(s) of action within ten (10) Business Days of receipt of the Decision Information from the Special Servicer. The Special Servicer shall consider any recommendations or proposals from the Operating Advisor and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Operating Advisor does not propose alternative courses of action or otherwise does not consult with Special Servicer within ten (10) Business Days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision.[Reserved] (d) Following the occurrence of and during the continuation of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event (other than in case of any Non- Serviced Commercial Real Estate Loan), the Special Servicer shall consult, on a non-binding basis, with the Subordinate Class Representative prior to making or refraining from making any Major Decision with respect to such Collateral Interest or as to which provision is otherwise made herein. The Special Servicer (i) shall promptly send the Subordinate Class Representative notice of and a copy of any written recommendation and analysis for such action together with all related Decision Information, and (ii) shall consult, on a non-binding basis, with the Subordinate Class Representative prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. The Special Servicer shall consider any recommendations or proposals from Subordinate Class Representative and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Subordinate Class Representative does not propose alternative courses of action or otherwise does not consult with the Special Servicer within ten (10) days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision.[Reserved] (e) After the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event (other than in case of any Non-Serviced Commercial Real Estate Loan), the Special Servicer shall also consult, on a non-binding basis, with the Subordinate Class Representative in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the Subordinate Class Representative shall propose alternative courses of action within ten (10) Business Days of receipt of each such Asset Status Report. The Special Servicer shall consider any such proposals from the Subordinate Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In addition, notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Control Termination Event with respect to a Serviced Commercial Real Estate Loan, the Special Servicer shall consult with the Operating Advisor in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the Operating Advisor shall, if it determines that an alternative course of action should be considered by the Special Servicer, propose, by written notice, such alternative course(s) of action within ten (10) Business Days of receipt of each such Asset Status Report; provided that the Special Servicer shall have no obligation to accept or implement in whole or in part any such suggested alternative. In the event that either the Operating Advisor or the applicable Directing Holder, as applicable, does not propose alternative courses of action within ten (10) Business Days after receipt of such Asset Status Report, the Special Servicer shall implement the Asset Status Report as proposed by the Special Servicer. (f) Subject to ~~Sections 3.23(i) and~~ Section 3.23(j), the Special Servicer shall recognize the consent and consultation rights of any Companion Participation Holder in accordance with ~~the~~ applicable Participation Agreement. (gf) ~~No Directing Holder~~ Neither the Collateral Manager nor, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation, shall owe any fiduciary duty to the Note Administrator, the Trustee, the ~~Operating Advisor, the~~ Servicer, the Special Servicer or any Noteholder. ~~No Directing Holder~~ Neither Collateral Manager nor, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation, shall have any duty or liability to any Noteholder for any action taken, or for refraining from the taking of any action or the giving of any consent or failure to give any consent in good faith pursuant to this Agreement or any such error in judgment. By its acceptance of a Note, each Noteholder shall be deemed to have confirmed its agreement that (i) ~~any Directing Holder~~ the Collateral Manager and, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation, may take or refrain from taking actions, or give or refrain from giving any consents or consult and make recommendations or refrain from consulting or making recommendations with respect to the Commercial Real Estate Loans, that favor the interests of any Noteholder (or holder of a Companion Participation, as applicable,) over any other Noteholder, (ii) ~~any Directing Holder~~ the Collateral Manager or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation, may have special relationships and interests that conflict with the interests of any Noteholder, (iii) it shall take no action against ~~any Directing Holder~~ the Collateral Manager or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and (iv) ~~no Directing Holder~~ neither Collateral Manager nor, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation, shall be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misconduct or to have recklessly disregarded any exercise of its rights or obligations by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of the Noteholders. (hg) The Note Administrator shall: (i) upon ~~written request (which includes via electronic mail) confirm for the Servicer, the Special Servicer, the Trustee and the Operating Advisor the occurrence or cessation~~ receipt of ~~any Control Shift Event, Control Termination Event or Consultation Termination Event, (ii) upon~~ notice of any change in the ~~Directing Holder~~ Collateral Manager or upon request, provide the name of the ~~applicable Directing Holder~~ Collateral Manager to ~~the Operating Advisor,~~ the Trustee, the Servicer and the Special ~~Servicer,~~ Servicer and (~~iii~~ii) with respect to a Non-CLO Controlled Collateral Interest, upon receipt of notice of any change in the ~~Operating Advisor~~ holder of the related Controlling Companion Participation or upon request, provide the name of ~~any successor Operating Advisor~~ such holder to the ~~applicable Directing Holder~~Trustee, the Collateral Manager, the Servicer and the Special Servicer. (ih) The Servicer, the Special Servicer, the Trustee or the Operating Advisor may from time to time request in writing (which includes via electronic mail) that the Note Administrator provide confirmation as to whether a Control Shift Event, Control Termination Event or a Consultation Termination Event has occurred in the twelve (12) months preceding any such request or any other period specified in such request. The Note Administrator shall respond to any such request within 10 calendar days.[Reserved] (ji) For the avoidance of doubt, in the event the Servicer or the Special Servicer, as applicable, determines, in accordance with the Servicing Standard, that any direction or refusal to consent by the ~~applicable Directing Holder~~ Collateral Manager, any Companion Participation Holder, the Trustee or the Controlling Class, or any advice from the ~~applicable Directing Holder~~Collateral Manager, ~~the Operating Advisor or~~ any Companion Participation Holder or the Trustee, would cause the Servicer or the Special Servicer, as applicable, to violate applicable law, the terms of the applicable Loan Documents, or the terms of this Agreement, including without limitation, the Servicing Standard, the Servicer or the Special Servicer, as applicable, shall disregard such direction or refusal to consent or advice, as the case may be, and notify the ~~applicable Directing~~ Collateral Manager, such Companion Participation Holder, the ~~Operating Advisor~~ Trustee or the ~~applicable Companion Participation Holder~~ Controlling Class of its determination, along with a reasonably detailed explanation of the basis therefor. (kj) To the extent that the ~~applicable Directing Holder~~ Collateral Manager or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation has the right hereunder to give its consent or make a decision with respect to any servicing matter, in the event that the Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard that immediate action is necessary to protect the interests of the Issuer, the Servicer or the Special Servicer, as applicable, may take such action without waiting for the ~~applicable Directing Holder~~Collateral Manager’s or, with respect to a Non-CLO Controlled Collateral Interest, the holder’s of the related Controlling Companion Participation response.

Appears in 1 contract

Samples: Servicing Agreement (Granite Point Mortgage Trust Inc.)

Control and Consultation. (a) For so long as no Control Termination Event has occurred and is continuing with respect to a Collateral Interest (other than Collateral Interests that are Non-CLO Controlled Collateral Interests), the Subordinate Class Representative (or, at all times with respect to a Non-CLO Controlled Collateral Interest, the related Directing Holder) The Controlling Holder shall have the right to consent to any Major Decisions with respect to ~~a Collateral Interest and~~ the ~~related underlying Commercial Real Estate~~ servicing of each Serviced Mortgage Loan, as the ~~Subordinate Class Representative (or, with respect to a Non-CLO Controlled Collateral Interest, the related Directing Holder)~~ Controlling Holder may deem advisable or as to which provision is otherwise made herein, and consult with and direct the Servicer and ~~the~~ Special ~~Servicer~~ Servicer, as applicable, with respect to any other actions to be taken or not taken with respect to such ~~Collateral Interest and the related underlying~~ Serviced ~~Commercial Real Estate Loan that relates to the Servicing or Special Servicing obligations under this Agreement~~Mortgage Loan, in each case subject to the Servicer’s or Special Servicer’s, as applicable, compliance with the Servicing Standard, and direct the Special Servicer to (i) enter into any Significant Modification with respect to a Serviced Commercial Real Estate Loan for which the Significant Modification Criteria are satisfied (as determined by the Subordinate Class Representative), (ii) enter into any Administrative Modification and (iii) enter into any Pre-Approved Modification. The evaluation of and entering into any Pre-Approved Modification, Significant Modification or Administrative Modification shall not be subject to the Servicing Standard. (b) Both the Servicer (in the case of a Performing Loan) and the Special Servicer may communicate directly with the Obligors in connection with any Major Decision or Other Borrower Request. If the Servicer receives any request for a Major Decision, Pre-Approved Modification or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Loans) on the Serviced Commercial Real Estate Loans that are not Specially Serviced Loans, the Servicer shall promptly forward such request to the Special Servicer for analysis (other than for Pre-Approved Modifications, Administrative Modifications or Significant Modifications) and processing and the Servicer shall have no further liability or duty with respect thereto. If the Special Servicer receives any such request from an Obligor (or from the Servicer), (other than for Pre-Approved Modifications, Administrative Modifications or Significant Modifications), the Special Servicer shall analyze and process the request subject to the terms of this Section 3.23. After a Major Decision, Pre-Approved Modification or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Loans) is approved, the Special Servicer shall notify the Servicer of such approval and when the related transaction closes the Special Servicer shall promptly provide the Servicer with the information necessary for the Servicer to update its records to reflect the terms of the transaction. For so long as no Control Termination Event has occurred and is continuing with respect to a Collateral Interest (and at any time in case of a Non-CLO Controlled Collateral Interest), the The Special Servicer (i) shall promptly send the ~~applicable Directing~~ Controlling Holder a copy of its written recommendation and analysis of any proposed Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto, and (ii) shall obtain the consent of the ~~applicable Directing~~ Controlling Holder prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. If the ~~applicable Directing~~ Controlling Holder objects to such proposed Major Decision, it must object in writing to the Special Servicer and propose an alternative course of action within ten (10) Business Days after receipt of the written recommendation and analysis described above. In the event that the ~~Special Servicer has requested consent for a Major Decision from the applicable Directing Holder and such Directing~~ Controlling Holder fails to object ~~to the Special Servicer~~ in writing within such ~~ten (10) Business Day period then~~ period, the Special Servicer shall take such action as it deems appropriate in accordance with the Servicing Standard. In the event that the Special Servicer determines that the ~~applicable Directing~~ Controlling Holder’s alternative proposal is in accordance with the Servicing Standard, then the Special Servicer shall take such actions as proposed by ~~such Directing~~ the Controlling Holder. In the event that the Special Servicer determines that the ~~applicable Directing~~ Controlling Holder’s alternative proposal is not in accordance with the Servicing Standard, or if the ~~applicable Directing~~ Controlling Holder fails to give notice of the actions to be taken within such ten (10) Business Day period, then the Special Servicer shall not be bound by ~~such Directing~~ the Controlling Holder’s determination with respect to such action and shall take such action or refrain from taking such action, as applicable, as the Special Servicer determines is in accordance with the Servicing Standard. After a Major Decision is approved, the Special Servicer shall notify the Servicer of such approval, and when the related transaction closes, the Special Servicer shall promptly provide the Servicer with the information necessary for the Servicer to update its records to reflect the terms of the transaction. (c) Following the occurrence of and during the continuation of a Control Termination Event with respect to a Serviced Commercial Real Estate Loan, the Operating Advisor shall consult with Special Servicer, with respect to making or refraining from making any Major Decision. The Special Servicer (i) shall promptly send the Operating Advisor a copy of its written recommendation and analysis for each Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto in a timely manner, including without limitation, any related Asset Status Report required to be delivered pursuant to Section 3.16(e) hereof (collectively, “Decision Information”), and (ii) shall consult, on a non-binding basis, with the Operating Advisor prior to taking or refraining from making any Major Decision or denying any waiver or consent with regard to a Major Decision. The Operating Advisor shall consult with Special Servicer with respect to such decision and, if it determines that an alternative course of action should be considered by the Special Servicer, propose such alternative course(s) of action within ten (10) Business Days of receipt of the Decision Information from the Special Servicer. The Special Servicer shall consider any recommendations or proposals from the Operating Advisor and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Operating Advisor does not propose alternative courses of action or otherwise does not consult with Special Servicer within ten (10) Business Days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision. (d) Following the occurrence of and during the continuation of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event (other than in case of any Non- Serviced Commercial Real Estate Loan), the Special Servicer shall consult, on a non-binding basis, with the Subordinate Class Representative prior to making or refraining from making any Major Decision with respect to such Collateral Interest or as to which provision is otherwise made herein. The Special Servicer (i) shall promptly send the Subordinate Class Representative notice of and a copy of any written recommendation and analysis for such action together with all related Decision Information, and (ii) shall consult, on a non-binding basis, with the Subordinate Class Representative prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. The Special Servicer shall consider any recommendations or proposals from Subordinate Class Representative and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Subordinate Class Representative does not propose alternative courses of action or otherwise does not consult with the Special Servicer within ten (10) days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision. (e) After the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event (other than in case of any Non-Serviced Commercial Real Estate Loan), the Special Servicer shall also consult, on a non-binding basis, with the Subordinate Class Representative in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the Subordinate Class Representative shall propose alternative courses of action within ten (10) Business Days of receipt of each such Asset Status Report. The Special Servicer shall consider any such proposals from the Subordinate Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In addition, notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Control Termination Event with respect to a Serviced Commercial Real Estate Loan, the Special Servicer shall consult with the Operating Advisor in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the Operating Advisor shall, if it determines that an alternative course of action should be considered by the Special Servicer, propose, by written notice, such alternative course(s) of action within ten (10) Business Days of receipt of each such Asset Status Report; provided that the Special Servicer shall have no obligation to accept or implement in whole or in part any such suggested alternative. In the event that either the Operating Advisor or the applicable Directing Holder, as applicable, does not propose alternative courses of action within ten (10) Business Days after receipt of such Asset Status Report, the Special Servicer shall implement the Asset Status Report as proposed by the Special Servicer. (f) Subject to Sections 3.23(i) and 3.23(j), the Special Servicer shall recognize the ~~consent and~~ consultation rights of any Companion Participation Holder in accordance with the applicable Participation Agreement. (g) No Directing Holder shall owe any fiduciary duty to the Note Administrator, the Trustee, the Operating Advisor, the Servicer, the Special Servicer or any Noteholder. No Directing Holder shall have any duty or liability to any Noteholder for any action taken, or for refraining from the taking of any action or the giving of any consent or failure to give any consent in good faith pursuant to this Agreement or any such error in judgment. By its acceptance of a Note, each Noteholder shall be deemed to have confirmed its agreement that (i) any Directing Holder may take or refrain from taking actions, or give or refrain from giving any consents or consult and make recommendations or refrain from consulting or making recommendations with respect to the Commercial Real Estate Loans, that favor the interests of any Noteholder (or holder of a Companion Participation, as applicable) over any other Noteholder, (ii) any Directing Holder may have special relationships and interests that conflict with the interests of any Noteholder, (iii) it shall take no action against any Directing Holder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and (iv) no Directing Holder shall be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misconduct or to have recklessly disregarded any exercise of its rights or obligations by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of the Noteholders. (h) The Note Administrator shall: (i) upon written request (which includes via electronic mail) confirm for the Servicer, the Special Servicer, the Trustee and the Operating Advisor the occurrence or cessation of any Control Shift Event, Control Termination Event or Consultation Termination Event, (ii) upon any change in the Directing Holder or upon request, provide the name of the applicable Directing Holder to the Operating Advisor, the Trustee, the Servicer and the Special Servicer, and (iii) upon any change in the Operating Advisor or upon request, provide the name of any successor Operating Advisor to the applicable Directing Holder, the Servicer and the Special Servicer. (i) The Servicer, the Special Servicer, the Trustee or the Operating Advisor may from time to time request in writing (which includes via electronic mail) that the Note Administrator provide confirmation as to whether a Control Shift Event, Control Termination Event or a Consultation Termination Event has occurred in the twelve (12) months preceding any such request or any other period specified in such request. The Note Administrator shall respond to any such request within 10 calendar days. (j) For the avoidance of doubt, in the event the Servicer or the Special Servicer, as applicable, determines, in accordance with the Servicing Standard, that any direction or refusal to consent by the applicable Directing Holder or any advice from the applicable Directing Holder, the Operating Advisor or any Companion Participation Holder would cause the Servicer or the Special Servicer, as applicable, to violate applicable law, the terms of the applicable Loan Documents, or the terms of this Agreement, including without limitation, the Servicing Standard, the Servicer or the Special Servicer, as applicable, shall disregard such direction or refusal to consent or advice, as the case may be, and notify the applicable Directing Holder, the Operating Advisor or the applicable Companion Participation Holder of its determination, along with a reasonably detailed explanation of the basis therefor. (kd) To the extent that the ~~applicable Directing~~ Controlling Holder has the right hereunder to give its consent or make a decision with respect to any servicing matter, in the event that the Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard that immediate action is necessary to protect the interests of the Issuer, the Servicer or the Special Servicer, as applicable, may take such action without waiting for the ~~applicable Directing~~ Controlling Holder’s response. (e) The Servicer or Special Servicer, as the case may be, shall (i) promptly send the Lead Lender a copy of its written recommendation and analysis of any proposed Material Modification, together with all information reasonably necessary to make an informed decision with respect thereto, (ii) provide five (5) Business Days for the Lead Lender to consult with, or provide other feedback to, Servicer or Special Servicer, as the case may be. If the Lead Lender does not provide its consent to the proposed Material Modification, the Class A LTV Calculation Amount for the related Mortgage Asset shall be reduced in the manner provided in the Indenture.

Appears in 1 contract

Samples: Servicing Agreement (Lument Finance Trust, Inc.)

Control and Consultation. (a) ~~For so long as no Control Termination Event has occurred and is continuing with respect to a~~ The Collateral ~~Interest (other than Collateral Interests that are Non-CLO Controlled Collateral Interests), the Subordinate Class Representative~~ Manager (or, ~~at all times~~ with respect to a Non-CLO Controlled ~~Collateral Interest~~Mortgage Asset, the holder of the related ~~Directing~~ controlling Participation Holder) shall have the right to consent to any Major Decisions with respect to ~~a Collateral Interest~~ such Mortgage Asset and the related underlying ~~Commercial Real Estate~~ Mortgage Loan, as the ~~Subordinate Class Representative~~ Collateral Manager (or, with respect to a Non-CLO Controlled ~~Collateral Interest~~Mortgage Asset, the holder of the related ~~Directing~~ controlling Participation Holder) may deem advisable or as to which provision is otherwise made herein, consult with and direct the Servicer and the Special Servicer with respect to any other actions to be taken or not taken with respect to such ~~Collateral Interest~~ Mortgage Asset and the related underlying ~~Serviced Commercial Real Estate Loan that relates to the Servicing or Special Servicing obligations under this Agreement~~Mortgage Loan, in each case subject to the Servicer’s or Special Servicer’s, as applicable, compliance with the Servicing Standard, and direct the Special Servicer to (i) enter into any Significant Modification with respect to a Serviced Commercial Real Estate Loan for which the Significant Modification Criteria are satisfied (as determined by the Subordinate Class Representative), (ii) enter into any Administrative Modification and (iii) enter into any Pre-Approved Modification. The evaluation of and entering into any Pre-Approved Modification, Significant Modification or Administrative Modification shall not be subject to the Servicing Standard. (b) Both the Servicer ~~(in the case of a Performing Loan)~~ and the Special Servicer may communicate directly with the Obligors in connection with any Major Decision or Other Borrower Request. If the Servicer receives any request for a Major ~~Decision, Pre-Approved Modification~~ Decision or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Mortgage Loans) on the ~~Serviced Commercial Real Estate Loans that are not Specially Serviced~~ Mortgage Loans, the Servicer shall promptly forward such request to the Special Servicer for analysis ~~(other than for Pre-Approved Modifications, Administrative Modifications or Significant Modifications)~~ and processing and the Servicer shall have no further liability or duty with respect thereto. If the Special Servicer receives any such request from an Obligor (or from the Servicer~~), (other than for Pre-Approved Modifications, Administrative Modifications or Significant Modifications),~~ ) the Special Servicer shall analyze and process the request subject to the terms of Section 3.22 and this Section 3.23. After a Major ~~Decision, Pre-Approved Modification~~ Decision or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Mortgage Loans) is approved, the Special Servicer shall notify the Servicer of such approval and when the related transaction closes the Special Servicer shall promptly provide the Servicer with the information necessary for the Servicer to update its records to reflect the terms of the transaction. ~~For so long as no Control Termination Event has occurred and is continuing with respect to a Collateral Interest (and at any time in case of a Non-CLO Controlled Collateral Interest), the~~ The Special Servicer (i) shall promptly send the ~~applicable Directing Holder~~ Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder) a copy of its written recommendation and analysis of any proposed Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto, and (ii) shall obtain the consent of the ~~applicable Directing Holder~~ Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder) prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. If the ~~applicable Directing Holder~~ Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder) objects to such proposed Major Decision, it must object in writing to the Special Servicer and propose an alternative course of action within ten (10) Business Days after receipt of the written recommendation and analysis described above. In the event that the Special Servicer has requested consent for a Major ~~Decision~~ Decisions from the ~~applicable Directing Holder~~ Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder) and ~~such Directing Holder~~ the Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder) fails to object to the Special Servicer within such ten (10) Business Day period then the Special Servicer shall take such action as it deems appropriate in accordance with the Servicing Standard. In the event that the Special Servicer determines that the ~~applicable Directing~~ Collateral Manager’s (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder’s ) alternative proposal is in accordance with the Servicing Standard, then the Special Servicer shall take such actions as proposed by ~~such Directing~~ the Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder). In the event that the Special Servicer determines that the ~~applicable Directing~~ Collateral Manager’s (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder’s ) alternative proposal is not in accordance with the Servicing Standard, or if the ~~applicable Directing Holder~~ Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder) fails to give notice of the actions to be taken within such ten (10) Business Day period, then the Special Servicer shall not be bound ~~by such Directing~~ the Collateral Manager’s (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder’s ) determination with respect to such action and shall take such action or refrain from taking such action, as applicable, as the Special Servicer determines is in accordance with the Servicing Standard. (c) Following the occurrence of and during the continuation of a ~~Control Termination~~ Special Servicer Consultation Event with respect to a ~~Serviced Commercial Real Estate Loan~~Mortgage Asset (other than in case of any Non-CLO Controlled Mortgage Asset), the Operating Advisor shall consult with Special Servicer, with respect to making or refraining from making any Major Decision. The Special Servicer (i) shall promptly send the Operating Advisor a copy of its written recommendation and analysis for each Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto in a timely manner, including without limitation, any related Asset Status Report required to be delivered pursuant to Section ~~3.16(e~~3.16(f) hereof (collectively, “Decision Information”), and (ii) shall consult, on a non-binding basis, with the Operating Advisor prior to taking or refraining from making any Major Decision or denying any waiver or consent with regard to a Major Decision. The Operating Advisor shall consult with Special Servicer with respect to such decision and, if it determines that an alternative course of action should be considered by the Special Servicer, propose such alternative course(s) of action within ten (10) Business Days of receipt of the Decision Information from the Special Servicer. The Special Servicer shall consider any recommendations or proposals from the Operating Advisor and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Operating Advisor does not propose alternative courses of action or otherwise does not consult with Special Servicer within ten (10) Business Days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision. (d) Following the occurrence of and during the continuation of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event (other than in case of any Non- Serviced Commercial Real Estate Loan), the Special Servicer shall consult, on a non-binding basis, with the Subordinate Class Representative prior to making or refraining from making any Major Decision with respect to such Collateral Interest or as to which provision is otherwise made herein. The Special Servicer (i) shall promptly send the Subordinate Class Representative notice of and a copy of any written recommendation and analysis for such action together with all related Decision Information, and (ii) shall consult, on a non-binding basis, with the Subordinate Class Representative prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. The Special Servicer shall consider any recommendations or proposals from Subordinate Class Representative and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Subordinate Class Representative does not propose alternative courses of action or otherwise does not consult with the Special Servicer within ten (10) days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision[Reserved.] (e) After the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event (other than in case of any Non-Serviced Commercial Real Estate Loan), the Special Servicer shall also consult, on a non-binding basis, with the Subordinate Class Representative in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the Subordinate Class Representative shall propose alternative courses of action within ten (10) Business Days of receipt of each such Asset Status Report. The Special Servicer shall consider any such proposals from the Subordinate Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In addition, notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Control Termination Event with respect to a Serviced Commercial Real Estate Loan, the Special Servicer shall consult with the Operating Advisor in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the Operating Advisor shall, if it determines that an alternative course of action should be considered by the Special Servicer, propose, by written notice, such alternative course(s) of action within ten (10) Business Days of receipt of each such Asset Status Report; provided that the Special Servicer shall have no obligation to accept or implement in whole or in part any such suggested alternative. In the event that either the Operating Advisor or the applicable Directing Holder, as applicable, does not propose alternative courses of action within ten (10) Business Days after receipt of such Asset Status Report, the Special Servicer shall implement the Asset Status Report as proposed by the Special Servicer[Reserved.] (f) Subject to ~~Sections 3.23(i) and~~ Section 3.23(j), the Special Servicer shall recognize the consent and consultation rights of any Companion Participation Holder in accordance with ~~the~~ applicable Participation Agreement. (g) ~~No Directing~~ With respect to a Non-CLO Controlled Mortgage Asset, no holder of the related controlling Participation Holder shall owe any fiduciary duty to the Note Administrator, the Trustee, the Operating Advisor, the Servicer, the Special Servicer or any ~~Noteholder. No Directing Holder~~ Noteholder and no such holder shall have any duty or liability to any Noteholder for any action taken, or for refraining from the taking of any action or the giving of any consent or failure to give any consent in good faith pursuant to this Agreement or any such error in judgment. By its acceptance of a Note, each Noteholder shall be deemed to have confirmed its agreement that with respect to a Non-CLO Controlled Mortgage Asset (i) ~~any Directing~~ the holder of the related controlling Participation Holder may take or refrain from taking actions, or give or refrain from giving any consents or consult and make recommendations or refrain from consulting or making recommendations with respect to the ~~Commercial Real Estate~~ Mortgage Loans, that favor the interests of any Noteholder (or holder of a Companion Participation, as applicable) over any other Noteholder, (ii) ~~any Directing~~ the holder of the related controlling Participation Holder may have special relationships and interests that conflict with the interests of any Noteholder, (iii) it shall take no action against ~~any Directing~~ the holder of the related controlling Participation Holder or any of ~~their~~ its respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and (iv) no ~~Directing~~ holder of the related controlling Participation Holder shall be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misconduct or to have recklessly disregarded any exercise of its rights or obligations by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of the Noteholders. (h) The Note Administrator shall: (i) upon ~~written request (which includes via electronic mail) confirm for the Servicer, the Special Servicer, the Trustee and the Operating Advisor the occurrence or cessation~~ receipt of ~~any Control Shift Event, Control Termination Event or Consultation Termination Event, (ii) upon~~ notice of any change in the ~~Directing Holder~~ Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder) or upon request, provide the name of the ~~applicable Directing Holder~~ Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder) to the Operating Advisor, the Trustee, the Servicer and the Special Servicer, and (~~iii~~ii) upon receipt of notice of any change in the Operating Advisor or upon request, provide the name of any successor Operating Advisor to the ~~applicable Directing~~ Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder), the Servicer and the Special Servicer. (i) The Servicer, the Special Servicer, the Trustee or the Operating Advisor may from time to time request in writing (which includes via electronic mail) that the Note Administrator provide confirmation as to whether a Control Shift Event, Control Termination Event or a Consultation Termination Event has occurred in the twelve (12) months preceding any such request or any other period specified in such request. The Note Administrator shall respond to any such request within 10 calendar days[Reserved.] (j) For the avoidance of doubt, in the event the Servicer or the Special Servicer, as applicable, determines, in accordance with the Servicing Standard, that any direction or refusal to consent by the ~~applicable Directing Holder~~ Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder) or any advice from the ~~applicable Directing~~ Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder), the Operating Advisor or any Companion Participation Holder would cause the Servicer or the Special Servicer, as applicable, to violate applicable law, the terms of the applicable ~~Loan~~ Asset Documents, or the terms of this Agreement, including without limitation, the Servicing Standard, the Servicer or the Special Servicer, as applicable, shall disregard such direction or refusal to consent or advice, as the case may be, and notify the ~~applicable Directing~~ Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder), the Operating Advisor or the applicable Companion Participation Holder of its determination, along with a reasonably detailed explanation of the basis therefor. (k) To the extent that the ~~applicable Directing Holder~~ Collateral Manager (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder) has the right hereunder to give its consent or make a decision with respect to any servicing matter, in the event that the Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard that immediate action is necessary to protect the interests of the Issuer, the Servicer or the Special Servicer, as applicable, may take such action without waiting for the ~~applicable Directing~~ Collateral Manager’s (or, with respect to a Non-CLO Controlled Mortgage Asset, the holder of the related controlling Participation Holder)’s response.

Appears in 1 contract

Samples: Servicing Agreement (TPG RE Finance Trust, Inc.)

Control and Consultation. (a) For so long as no Control Termination Event has occurred and is continuing with respect to a ~~Collateral Interest~~ Mortgage Asset (~~other than Collateral Interests that are Non-CLO Controlled Collateral Interests), the Subordinate Class Representative (or,~~ and at ~~all times with respect to~~ any time in case of a Non-CLO Controlled ~~Collateral Interest~~Mortgage Asset), the ~~related~~ applicable Directing ~~Holder)~~ Holder shall have the right to consent to any Major Decisions with respect to ~~a Collateral Interest~~ such Mortgage Asset and the related underlying ~~Commercial Real Estate~~ Mortgage Loan, as the ~~Subordinate Class Representative (or, with respect to a Non-CLO Controlled Collateral Interest, the related~~ applicable Directing ~~Holder)~~ Holder may deem advisable or as to which provision is otherwise made herein, consult with and direct the Servicer and the Special Servicer with respect to any other actions to be taken or not taken with respect to such ~~Collateral Interest~~ Mortgage Asset and the related underlying ~~Serviced Commercial Real Estate Loan that relates to the Servicing or Special Servicing obligations under this Agreement~~Mortgage Loan, in each case subject to the Servicer’s or Special Servicer’s, as applicable, compliance with the Servicing Standard, and direct the Special Servicer to (i) enter into any Significant Modification with respect to a Serviced Commercial Real Estate Loan for which the Significant Modification Criteria are satisfied (as determined by the Subordinate Class Representative), (ii) enter into any Administrative Modification and (iii) enter into any Pre-Approved Modification. The evaluation of and entering into any Pre-Approved Modification, Significant Modification or Administrative Modification shall not be subject to the Servicing Standard. (b) Both the Servicer ~~(in the case of a Performing Loan)~~ and the Special Servicer may communicate directly with the Obligors in connection with any Major Decision or Other Borrower Request. If the Servicer receives any request for a Major ~~Decision, Pre-Approved Modification~~ Decision or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Mortgage Loans) on the ~~Serviced Commercial Real Estate Loans that are not Specially Serviced~~ Mortgage Loans, the Servicer shall promptly forward such request to the Special Servicer for analysis ~~(other than for Pre-Approved Modifications, Administrative Modifications or Significant Modifications)~~ and processing and the Servicer shall have no further liability or duty with respect thereto. If the Special Servicer receives any such request from an Obligor (or from the Servicer~~), (other than for Pre-Approved Modifications, Administrative Modifications or Significant Modifications),~~ ) the Special Servicer shall analyze and process the request subject to the terms of Section 3.22 and this Section 3.23. After a Major ~~Decision, Pre-Approved Modification~~ Decision or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Mortgage Loans) is approved, the Special Servicer shall notify the Servicer of such approval and when the related transaction closes the Special Servicer shall promptly provide the Servicer with the information necessary for the Servicer to update its records to reflect the terms of the transaction. For so long as no Control Termination Event has occurred and is continuing with respect to a ~~Collateral Interest~~ Mortgage Asset (and at any time in case of a Non-CLO Controlled ~~Collateral Interest~~Mortgage Asset), the Special Servicer (i) shall promptly send the applicable Directing Holder a copy of its written recommendation and analysis of any proposed Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto, and (ii) shall obtain the consent of the applicable Directing Holder prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. If the applicable Directing Holder objects to such proposed Major Decision, it must object in writing to the Special Servicer and propose an alternative course of action within ten (10) Business Days after receipt of the written recommendation and analysis described above. In the event that the Special Servicer has requested consent for a Major ~~Decision~~ Decisions from the applicable Directing Holder and such Directing Holder fails to object to the Special Servicer within such ten (10) Business Day period then the Special Servicer shall take such action as it deems appropriate in accordance with the Servicing Standard. In the event that the Special Servicer determines that the applicable Directing Holder’s alternative proposal is in accordance with the Servicing Standard, then the Special Servicer shall take such actions as proposed by such Directing Holder. In the event that the Special Servicer determines that the applicable Directing Holder’s alternative proposal is not in accordance with the Servicing Standard, or if the applicable Directing Holder fails to give notice of the actions to be taken within such ten (10) Business Day period, then the Special Servicer shall not be bound by such Directing Holder’s determination with respect to such action and shall take such action or refrain from taking such action, as applicable, as the Special Servicer determines is in accordance with the Servicing Standard. (c) Following the occurrence of and during the continuation of a Control Termination Event with respect to a ~~Serviced Commercial Real Estate Loan~~Mortgage Asset (other than in case of any Non-CLO Controlled Mortgage Asset), the Operating Advisor shall consult with Special Servicer, with respect to making or refraining from making any Major Decision. The Special Servicer (i) shall promptly send the Operating Advisor a copy of its written recommendation and analysis for each Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto in a timely manner, including without limitation, any related Asset Status Report required to be delivered pursuant to Section ~~3.16(e~~3.16(f) hereof (collectively, “Decision Information”), and (ii) shall consult, on a non-binding basis, with the Operating Advisor prior to taking or refraining from making any Major Decision or denying any waiver or consent with regard to a Major Decision. The Operating Advisor shall consult with Special Servicer with respect to such decision and, if it determines that an alternative course of action should be considered by the Special Servicer, propose such alternative course(s) of action within ten (10) Business Days of receipt of the Decision Information from the Special Servicer. The Special Servicer shall consider any recommendations or proposals from the Operating Advisor and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Operating Advisor does not propose alternative courses of action or otherwise does not consult with Special Servicer within ten (10) Business Days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision. (d) Following the occurrence of and during the continuation of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event with respect to a Mortgage Asset (other than in case of any ~~Non- Serviced Commercial Real Estate Loan~~Non-CLO Controlled Mortgage Asset), the Special Servicer shall consult, on a non-binding basis, with the ~~Subordinate Class Representative~~ applicable Directing Holder prior to making or refraining from making any Major Decision with respect to such ~~Collateral Interest~~ Mortgage Asset or as to which provision is otherwise made herein. The Special Servicer (i) shall promptly send the ~~Subordinate Class Representative~~ applicable Directing Holder notice of and a copy of any written recommendation and analysis for such action together with all related Decision Information, and (ii) shall consult, on a non-binding basis, with the ~~Subordinate Class Representative~~ applicable Directing Holder prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. The Special Servicer shall consider any recommendations or proposals from ~~Subordinate Class Representative~~ the applicable Directing Holder and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the ~~Subordinate Class Representative~~ applicable Directing Holder does not propose alternative courses of action or otherwise does not consult with the Special Servicer within ten (10) days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision. (e) After the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event with respect to a Mortgage Asset (other than in case of any Non-~~Serviced Commercial Real Estate Loan~~CLO Controlled Mortgage Asset), the Special Servicer shall also consult, on a non-binding basis, with the ~~Subordinate Class Representative~~ applicable Directing Holder in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the ~~Subordinate Class Representative~~ applicable Directing Holder shall propose alternative courses of action within ten (10) Business Days of receipt of each such Asset Status Report. The Special Servicer shall consider any such proposals from the ~~Subordinate Class Representative~~ applicable Directing Holder and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In addition, notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Control Termination Event with respect to a ~~Serviced Commercial Real Estate Loan~~Mortgage Asset (other than in case of any Non-CLO Controlled Mortgage Asset), the Special Servicer shall consult with the Operating Advisor in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the Operating Advisor shall, if it determines that an alternative course of action should be considered by the Special Servicer, propose, by written notice, such alternative course(s) of action within ten (10) Business Days of receipt of each such Asset Status Report~~; provided that the Special Servicer shall have no obligation to accept or implement in whole or in part any such suggested alternative~~. In the event that either the Operating Advisor or the applicable Directing Holder, as applicable, does not propose alternative courses of action within ten (10) Business Days after receipt of such Asset Status Report, the Special Servicer shall implement the Asset Status Report as proposed by the Special Servicer. (f) Subject to ~~Sections 3.23(i) and~~ Section 3.23(j), the Special Servicer shall recognize the consent and consultation rights of any Companion Participation Holder in accordance with ~~the~~ applicable Participation Agreement. (g) No Directing Holder shall owe any fiduciary duty to the Note Administrator, the Trustee, the Operating Advisor, the Servicer, the Special Servicer or any Noteholder. No Directing Holder shall have any duty or liability to any Noteholder for any action taken, or for refraining from the taking of any action or the giving of any consent or failure to give any consent in good faith pursuant to this Agreement or any such error in judgment. By its acceptance of a Note, each Noteholder shall be deemed to have confirmed its agreement that (i) any Directing Holder may take or refrain from taking actions, or give or refrain from giving any consents or consult and make recommendations or refrain from consulting or making recommendations with respect to the ~~Commercial Real Estate~~ Mortgage Loans, that favor the interests of any Noteholder (or holder of a Companion Participation, as applicable) over any other Noteholder, (ii) any Directing Holder may have special relationships and interests that conflict with the interests of any Noteholder, (iii) it shall take no action against any Directing Holder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and (iv) no Directing Holder shall be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misconduct or to have recklessly disregarded any exercise of its rights or obligations by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of the Noteholders. (h) The Note Administrator shall: (i) upon written request (which includes via electronic mail) confirm for the Servicer, the Special Servicer, the Trustee and the Operating Advisor the occurrence or cessation of any Control Shift Event, Control Termination Event or Consultation Termination Event, (ii) upon any change in the Directing Holder or upon request, provide the name of the applicable Directing Holder to the Operating Advisor, the Trustee, the Servicer and the Special Servicer, and (iii) upon any change in the Operating Advisor or upon request, provide the name of any successor Operating Advisor to the applicable Directing Holder, the Servicer and the Special Servicer. (i) The Servicer, the Special Servicer, the Trustee or the Operating Advisor may from time to time request in writing (which includes via electronic mail) that the Note Administrator provide confirmation as to whether a Control Shift Event, Control Termination Event or a Consultation Termination Event has occurred in the ~~twelve (12)~~ 12 months preceding any such request or any other period specified in such request. The Note Administrator shall respond to any such request within 10 calendar days. (j) For the avoidance of doubt, in the event the Servicer or the Special Servicer, as applicable, determines, in accordance with the Servicing Standard, that any direction or refusal to consent by the applicable Directing Holder or any advice from the applicable Directing Holder, the Operating Advisor or any Companion Participation Holder would cause the Servicer or the Special Servicer, as applicable, to violate applicable law, the terms of the applicable ~~Loan~~ Asset Documents, or the terms of this Agreement, including without limitation, the Servicing Standard, the Servicer or the Special Servicer, as applicable, shall disregard such direction or refusal to consent or advice, as the case may be, and notify the applicable Directing Holder, the Operating Advisor or the applicable Companion Participation Holder of its determination, along with a reasonably detailed explanation of the basis therefor. (k) To the extent that the applicable Directing Holder has the right hereunder to give its consent or make a decision with respect to any servicing matter, in the event that the Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard that immediate action is necessary to protect the interests of the Issuer, the Servicer or the Special Servicer, as applicable, may take such action without waiting for the applicable Directing Holder’s response.

Appears in 1 contract

Samples: Servicing Agreement (TPG RE Finance Trust, Inc.)

Control and Consultation. (a) ~~For so long as no Control Termination Event has occurred and is continuing with respect to a~~ The Collateral ~~Interest (other than Collateral Interests that are Non-CLO Controlled Collateral Interests), the Subordinate Class Representative~~ Manager (or, ~~at all times~~ with respect to a Non-CLO Controlled Collateral Interest, the holder of the related ~~Directing Holder~~Controlling Companion Participation) shall have the right to consent to any Major Decisions with respect to a Collateral Interest and the related underlying Commercial Real Estate Loan, as the ~~Subordinate Class Representative~~ Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related ~~Directing Holder~~Controlling Companion Participation) may deem advisable or as to which provision is otherwise made herein, consult with and direct the Servicer and the Special Servicer with respect to any other actions to be taken or not taken with respect to such Collateral Interest and the related underlying Serviced Commercial Real Estate Loan that relates to the Servicing or Special Servicing obligations under this Agreement, in each case subject to the Servicer’s or Special Servicer’s, as applicable, compliance with the Servicing Standard, and direct the Special Servicer to (i) ~~enter into~~ administratively process any ~~Significant~~ Criteria-Based Modification with respect to a Serviced Commercial Real Estate Loan for which the ~~Significant~~ Criteria-Based Modification ~~Criteria~~ are ~~satisfied (~~satisfied, as determined by the ~~Subordinate Class Representative)~~Collateral Manager in accordance with the Collateral Management Standard, and (ii) ~~enter into~~ administratively process any Administrative ~~Modification and (iii) enter into any Pre-Approved~~ Modification. The evaluation of of, administrative processing and entering into any ~~Pre~~Criteria-~~Approved Modification, Significant~~ Based Modification or Administrative Modification shall not be subject to the Servicing Standard. (b) Both the Servicer (in the case of a Performing Loan) and the Special Servicer may communicate directly with the Obligors in connection with any Major Decision or Other Borrower Request. If the Servicer receives any request for a Major Decision, ~~Pre~~Administrative Modification, Criteria-~~Approved~~ Based Modification or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Loans) on the Serviced Commercial Real Estate Loans that are not Specially Serviced Loans, the Servicer shall promptly forward such request to the Special Servicer for analysis (other than for ~~Pre-Approved Modifications,~~ Administrative Modifications or ~~Significant~~ Criteria-Based Modifications) and processing and the Servicer shall have no further liability or duty with respect thereto. The Special Servicer shall send the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) a copy of any written request of an Obligor for a decision that is a Major Decision or any written notification of the occurrence of an event or circumstance that requires the making of a Major Decision within two (2) Business Days of receipt thereof. If the Collateral Manager receives any request for a Major Decision on the Commercial Real Estate Loans, the Collateral Manager shall promptly, and in any event within two (2) Business Days, forward such request to the Special Servicer for analysis and processing. If the Special Servicer receives any such request from an Obligor (or from the ~~Servicer),~~ Servicer or the Collateral Manager) (other than a request for ~~Pre~~an Administrative Modification or Criteria-~~Approved Modifications, Administrative Modifications or Significant Modifications),~~ Based Modification) the Special Servicer shall analyze and process the request subject to the terms of this Section 3.23. The Special Servicer (i) shall promptly upon its completion thereof send the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) a copy of its written recommendation and analysis of any proposed Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto, and (ii) shall obtain the consent of the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. If the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) objects to such proposed Major Decision, it must object in writing to the Special Servicer and propose an alternative course of action within ten (10) Business Days after receipt of the written recommendation and analysis described above. In the event that the Special Servicer has requested consent for Major Decisions from the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) and the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) fails to object to the Special Servicer within such ten (10) Business Day period then the Special Servicer shall take such action as it deems appropriate in accordance with the Servicing Standard. In the event that the Special Servicer determines that the Collateral Manager’s (or, with respect to a Non-CLO Controlled Collateral Interest, the holder’s of the related Controlling Companion Participation’s) alternative proposal is in accordance with the Servicing Standard, then the Special Servicer shall take such actions as proposed by the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation). In the event that the Special Servicer determines that the Collateral Manager’s (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation’s) alternative proposal is not in accordance with the Servicing Standard, or if the Collateral Manager (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation) fails to give notice of the actions to be taken within such ten (10) Business Day period, then the Special Servicer shall not be bound the Collateral Manager’s (or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation’s) determination with respect to such action and shall take such action or refrain from taking such action, as applicable, as the Special Servicer determines is in accordance with the Servicing Standard. After a Major ~~Decision, Pre-Approved Modification~~ Decision or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Loans) is approved, the Special Servicer shall notify the Servicer of such approval and when the related transaction closes the Special Servicer shall promptly provide the Servicer with the information necessary for the Servicer to update its records to reflect the terms of the transaction. For so long as no Control Termination Event has occurred and is continuing with respect to a Collateral Interest (and at any time in case of a Non-CLO Controlled Collateral Interest), the Special Servicer (i) shall promptly send the applicable Directing Holder a copy of its written recommendation and analysis of any proposed Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto, and (ii) shall obtain the consent of the applicable Directing Holder prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. If the applicable Directing Holder objects to such proposed Major Decision, it must object in writing to the Special Servicer and propose an alternative course of action within ten (10) Business Days after receipt of the written recommendation and analysis described above. In the event that the Special Servicer has requested consent for a Major Decision from the applicable Directing Holder and such Directing Holder fails to object to the Special Servicer within such ten (10) Business Day period then the Special Servicer shall take such action as it deems appropriate in accordance with the Servicing Standard. In the event that the Special Servicer determines that the applicable Directing Holder’s alternative proposal is in accordance with the Servicing Standard, then the Special Servicer shall take such actions as proposed by such Directing Holder. In the event that the Special Servicer determines that the applicable Directing Holder’s alternative proposal is not in accordance with the Servicing Standard, or if the applicable Directing Holder fails to give notice of the actions to be taken within such ten (10) Business Day period, then the Special Servicer shall not be bound by such Directing Holder’s determination with respect to such action and shall take such action or refrain from taking such action, as applicable, as the Special Servicer determines is in accordance with the Servicing Standard. (c) Following the occurrence of and during the continuation of a Control Termination Event with respect to a Serviced Commercial Real Estate Loan, the Operating Advisor shall consult with Special Servicer, with respect to making or refraining from making any Major Decision. The Special Servicer (i) shall promptly send the Operating Advisor a copy of its written recommendation and analysis for each Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto in a timely manner, including without limitation, any related Asset Status Report required to be delivered pursuant to Section 3.16(e) hereof (collectively, “Decision Information”), and (ii) shall consult, on a non-binding basis, with the Operating Advisor prior to taking or refraining from making any Major Decision or denying any waiver or consent with regard to a Major Decision. The Operating Advisor shall consult with Special Servicer with respect to such decision and, if it determines that an alternative course of action should be considered by the Special Servicer, propose such alternative course(s) of action within ten (10) Business Days of receipt of the Decision Information from the Special Servicer. The Special Servicer shall consider any recommendations or proposals from the Operating Advisor and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Operating Advisor does not propose alternative courses of action or otherwise does not consult with Special Servicer within ten (10) Business Days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision[Reserved]. (d) Following the occurrence of and during the continuation of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event (other than in case of any Non- Serviced Commercial Real Estate Loan), the Special Servicer shall consult, on a non-binding basis, with the Subordinate Class Representative prior to making or refraining from making any Major Decision with respect to such Collateral Interest or as to which provision is otherwise made herein. The Special Servicer (i) shall promptly send the Subordinate Class Representative notice of and a copy of any written recommendation and analysis for such action together with all related Decision Information, and (ii) shall consult, on a non-binding basis, with the Subordinate Class Representative prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. The Special Servicer shall consider any recommendations or proposals from Subordinate Class Representative and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Subordinate Class Representative does not propose alternative courses of action or otherwise does not consult with the Special Servicer within ten (10) days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision[Reserved]. (e) After the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event (other than in case of any Non-Serviced Commercial Real Estate Loan), the Special Servicer shall also consult, on a non-binding basis, with the Subordinate Class Representative in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the Subordinate Class Representative shall propose alternative courses of action within ten (10) Business Days of receipt of each such Asset Status Report. The Special Servicer shall consider any such proposals from the Subordinate Class Representative and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In addition, notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Control Termination Event with respect to a Serviced Commercial Real Estate Loan, the Special Servicer shall consult with the Operating Advisor in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the Operating Advisor shall, if it determines that an alternative course of action should be considered by the Special Servicer, propose, by written notice, such alternative course(s) of action within ten (10) Business Days of receipt of each such Asset Status Report; provided that the Special Servicer shall have no obligation to accept or implement in whole or in part any such suggested alternative. In the event that either the Operating Advisor or the applicable Directing Holder, as applicable, does not propose alternative courses of action within ten (10) Business Days after receipt of such Asset Status Report, the Special Servicer shall implement the Asset Status Report as proposed by the Special Servicer. (f) Subject to Sections 3.23(i) and 3.23(j), the Special Servicer shall recognize the consent and consultation rights of any Companion Participation Holder in accordance with the applicable Participation Agreement. (gf) ~~No Directing Holder~~ Neither the Collateral Manager nor, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation, shall owe any fiduciary duty to the Note Administrator, the Trustee, the ~~Operating Advisor, the~~ Servicer, the Special Servicer or any Noteholder. ~~No Directing Holder~~ Neither Collateral Manager nor, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation, shall have any duty or liability to any Noteholder for any action taken, or for refraining from the taking of any action or the giving of any consent or failure to give any consent in good faith pursuant to this Agreement or any such error in judgment. By its acceptance of a Note, each Noteholder shall be deemed to have confirmed its agreement that (i) ~~any Directing Holder~~ the Collateral Manager and, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation, may take or refrain from taking actions, or give or refrain from giving any consents or consult and make recommendations or refrain from consulting or making recommendations with respect to the Commercial Real Estate Loans, that favor the interests of any Noteholder (or holder of a Companion Participation, as applicable,) over any other Noteholder, (ii) ~~any Directing Holder~~ the Collateral Manager or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation, may have special relationships and interests that conflict with the interests of any Noteholder, (iii) it shall take no action against ~~any Directing Holder~~ the Collateral Manager or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and (iv) ~~no Directing Holder~~ neither Collateral Manager nor, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation, shall be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misconduct or to have recklessly disregarded any exercise of its rights or obligations by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of the Noteholders. (hg) The Note Administrator shall: (i) upon ~~written request (which includes via electronic mail) confirm for the Servicer, the Special Servicer, the Trustee and the Operating Advisor the occurrence or cessation~~ receipt of ~~any Control Shift Event, Control Termination Event or Consultation Termination Event, (ii) upon~~ notice of any change in the ~~Directing Holder~~ Collateral Manager or upon request, provide the name of the ~~applicable Directing Holder~~ Collateral Manager to ~~the Operating Advisor,~~ the Trustee, the Servicer and the Special ~~Servicer,~~ Servicer and (~~iii~~ii) with respect to a Non-CLO Controlled Collateral Interest, upon receipt of notice of any change in the ~~Operating Advisor~~ holder of the related Controlling Companion Participation or upon request, provide the name of ~~any successor Operating Advisor~~ such holder to the ~~applicable Directing Holder~~Trustee, the Collateral Manager, the Servicer and the Special Servicer. (ih) The Servicer, the Special Servicer, the Trustee or the Operating Advisor may from time to time request in writing (which includes via electronic mail) that the Note Administrator provide confirmation as to whether a Control Shift Event, Control Termination Event or a Consultation Termination Event has occurred in the twelve (12) months preceding any such request or any other period specified in such request. The Note Administrator shall respond to any such request within 10 calendar days[Reserved]. (ji) For the avoidance of doubt, in the event the Servicer or the Special Servicer, as applicable, determines, in accordance with the Servicing ~~Standard~~Standard (expect in connection with any Criteria-Based Modification or Administrative Modification), that any direction or refusal to consent by the ~~applicable Directing Holder~~ Collateral Manager, any Companion Participation Holder, the Trustee or the Controlling Class, or any advice from the ~~applicable Directing Holder~~Collateral Manager, ~~the Operating Advisor or~~ any Companion Participation Holder or the Trustee, would cause the Servicer or the Special Servicer, as applicable, to violate applicable law, the terms of the applicable Loan Documents, or the terms of this Agreement, including without limitation, the Servicing Standard, the Servicer or the Special Servicer, as applicable, shall disregard such direction or refusal to consent or advice, as the case may be, and notify the ~~applicable Directing~~ Collateral Manager, such Companion Participation Holder, the ~~Operating Advisor~~ Trustee or the ~~applicable Companion Participation Holder~~ Controlling Class of its determination, along with a reasonably detailed explanation of the basis therefor. (kj) To the extent that the ~~applicable Directing Holder~~ Collateral Manager or, with respect to a Non-CLO Controlled Collateral Interest, the holder of the related Controlling Companion Participation has the right hereunder to give its consent or make a decision with respect to any servicing matter, in the event that the Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard that immediate action is necessary to protect the interests of the Issuer, the Servicer or the Special Servicer, as applicable, may take such action without waiting for the ~~applicable Directing Holder~~Collateral Manager’s or, with respect to a Non-CLO Controlled Collateral Interest, the holder’s of the related Controlling Companion Participation response.

Appears in 1 contract

Samples: Servicing Agreement (Granite Point Mortgage Trust Inc.)

Control and Consultation. (a) For so long as no Control Termination Event has occurred and is continuing with respect to a Collateral Interest (~~other than Collateral Interests that are Non-CLO Controlled Collateral Interests), the Subordinate Class Representative (or,~~ and at ~~all times with respect to~~ any time in case of a Non-CLO Controlled Collateral Interest), the ~~related~~ applicable Directing ~~Holder)~~ Holder shall have the right to consent to any Major Decisions with respect to a such Collateral Interest and the related underlying Commercial Real Estate Loan, as the ~~Subordinate Class Representative (or, with respect to a Non-CLO Controlled Collateral Interest, the related~~ applicable Directing ~~Holder)~~ Holder may deem advisable or as to which provision is otherwise made herein, consult with and direct the Servicer and the Special Servicer with respect to any other actions to be taken or not taken with respect to such Collateral Interest and the related underlying ~~Serviced~~ Commercial Real Estate ~~Loan that relates to the Servicing or Special Servicing obligations under this Agreement~~Loan, in each case subject to the Servicer’s or Special Servicer’s, as applicable, compliance with the Servicing Standard, and direct the Special Servicer to (i) enter into any Significant Modification with respect to a Serviced Commercial Real Estate Loan for which the Significant Modification Criteria are satisfied (as determined by the Subordinate Class Representative), (ii) enter into any Administrative Modification and (iii) enter into any Pre-Approved Modification. The evaluation of and entering into any Pre-Approved ~~Modification, Significant~~ Modification ~~or Administrative Modification shall~~ will not be subject to the Servicing Standard. (b) ~~Both the Servicer (in the case of a Performing Loan) and the Special Servicer may communicate directly with the Obligors in connection with any Major Decision or Other Borrower Request.~~ If the Servicer receives any request for a Major Decision, Pre-Approved Modification or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Loans) on the ~~Serviced~~ Commercial Real Estate Loans that are not Specially Serviced Loans, the Servicer shall promptly forward such request to the Special Servicer for analysis ~~(other than for Pre-Approved Modifications, Administrative Modifications or Significant Modifications)~~ and processing and the Servicer shall have no further liability or duty with respect thereto. If the Special Servicer receives any such request from an Obligor (or from the Servicer~~), (other than for Pre-Approved Modifications, Administrative Modifications or Significant Modifications),~~ ) the Special Servicer shall analyze and process the request subject to the terms of Section 3.22 and this Section 3.23. After a Major Decision, Pre-Approved Modification or Other Borrower Request (other than waivers of late payment charges and default interest on Performing Loans) is approved, the Special Servicer shall notify the Servicer of such approval and when the related transaction closes the Special Servicer shall promptly provide the Servicer with the information necessary for the Servicer to update its records to reflect the terms of the transaction. For so long as no Control Termination Event has occurred and is continuing with respect to a Collateral Interest (and at any time in case of a Non-CLO Controlled Collateral Interest), the Special Servicer (i) shall promptly send the applicable Directing Holder a copy of its written recommendation and analysis of any proposed Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto, and (ii) shall obtain the consent of the applicable Directing Holder prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. If the applicable Directing Holder objects to such proposed Major Decision, it must object in writing to the Special Servicer and propose an alternative course of action within ten (10) Business Days after receipt of the written recommendation and analysis described above. In the event that the Special Servicer has requested consent for a Major Decision from the applicable Directing Holder and such Directing Holder fails to object to the Special Servicer within such ten (10) Business Day period then the Special Servicer shall take such action as it deems appropriate in accordance with the Servicing Standard. In the event that the Special Servicer determines that the applicable Directing Holder’s alternative proposal is in accordance with the Servicing Standard, then the Special Servicer shall take such actions as proposed by such Directing Holder. In the event that the Special Servicer determines that the applicable Directing Holder’s alternative proposal is not in accordance with the Servicing Standard, or if the applicable Directing Holder fails to give notice of the actions to be taken within such ten (10) Business Day period, then the Special Servicer shall not be bound by such Directing Holder’s determination with respect to such action and shall take such action or refrain from taking such action, as applicable, as the Special Servicer determines is in accordance with the Servicing Standard.00000000.00.XXXXXXXX -73- (c) Following the occurrence of and during the continuation of a Control Termination Event with respect to a ~~Serviced Commercial Real Estate Loan~~Collateral Interest (other than in case of any Non-CLO Controlled Collateral Interest), the Operating Advisor shall consult with Special Servicer, with respect to making or refraining from making any Major Decision. The Special ~~Servicer~~ Servicer (i) shall promptly send the Operating Advisor a copy of its written recommendation and analysis for each Major Decision, together with all information reasonably necessary to make an informed decision with respect thereto in a timely manner, including without limitation, any related Asset Status Report required to be delivered pursuant to Section ~~3.16(e~~3.16(f) hereof (collectively, “Decision Information”), and (ii) shall consult, on a non-binding basis, with the Operating Advisor prior to taking or refraining from making any Major Decision or denying any waiver or consent with regard to a Major Decision. The Operating Advisor shall consult with Special Servicer with respect to such decision and, if it determines that an alternative course of action should be considered by the Special Servicer, propose such alternative course(s) of action within ten (10) Business Days of receipt of the Decision Information from the Special Servicer. The Special Servicer shall consider any recommendations or proposals from the Operating Advisor and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the Operating Advisor does not propose alternative courses of action or otherwise does not consult with Special Servicer within ten (10) Business Days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision. (d) Following the occurrence of and during the continuation of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event (other than in case of any ~~Non- Serviced Commercial Real Estate Loan~~Non-CLO Controlled Collateral Interest), the Special Servicer shall consult, on a non-binding basis, with the ~~Subordinate Class Representative~~ applicable Directing Holder prior to making or refraining from making any Major Decision with respect to such Collateral Interest or as to which provision is otherwise made herein. The Special ~~Servicer~~ Servicer (i) shall promptly send the ~~Subordinate Class Representative~~ applicable Directing Holder notice of and a copy of any written recommendation and analysis for such action together with all related Decision Information, and (ii) shall consult, on a non-binding basis, with the ~~Subordinate Class Representative~~ applicable Directing Holder prior to making or refraining from making any Major Decision or providing or denying any waiver or consent with regard to a Major Decision. The Special Servicer shall consider any recommendations or proposals from ~~Subordinate Class Representative~~ the applicable Directing Holder and determine whether any changes to its proposed course of action with respect to a decision should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In the event that the ~~Subordinate Class Representative~~ applicable Directing Holder does not propose alternative courses of action or otherwise does not consult with the Special Servicer within ten (10) days after receipt of the Decision Information, the Special Servicer shall take the proposed course of action with respect to such decision. 00000000. (e) After the occurrence and during the continuance of a Control Termination Event, but prior to the occurrence of a Consultation Termination Event (other than in case of any Non-~~Serviced Commercial Real Estate Loan~~CLO Controlled Collateral Interest), the Special Servicer shall also consult, on a ~~non-~~non- binding basis, with the ~~Subordinate Class Representative~~ applicable Directing Holder in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the ~~Subordinate Class Representative~~ applicable Directing Holder shall propose alternative courses of action within ten (10) Business Days of receipt of each such Asset Status Report. The Special Servicer shall consider any such proposals from the ~~Subordinate Class Representative~~ applicable Directing Holder and determine whether any changes to its proposed Asset Status Report should be made, such determination being made in accordance with the Servicing Standard and the other terms of this Agreement. In addition, notwithstanding anything to the contrary herein, after the occurrence and during the continuance of a Control Termination Event with respect to a ~~Serviced Commercial Real Estate Loan~~Collateral Interest (other than in case of any Non-CLO Controlled Collateral Interest), the Special Servicer shall consult with the Operating Advisor in connection with each Asset Status Report, prior to finalizing and executing such Asset Status Report and the Operating Advisor shall, if it determines that an alternative course of action should be considered by the Special Servicer, propose, by written notice, such alternative course(s) of action within ten (10) Business Days of receipt of each such Asset Status Report; provided that the Special Servicer shall have no obligation to accept or implement in whole or in part any such suggested alternative. In the event that either the Operating Advisor or the applicable Directing Holder, as applicable, does not propose alternative courses of action within ten (10) Business Days after receipt of such Asset Status Report, the Special Servicer shall implement the Asset Status Report as proposed by the Special Servicer. (f) Subject to ~~Sections 3.23(i) and~~ Section 3.23(j), the Special Servicer shall recognize the consent and consultation rights of any Companion Participation Holder in accordance with ~~the~~ applicable Participation Agreement. (g) No Directing Holder shall owe any fiduciary duty to the Note Administrator, the Trustee, the Operating Advisor, the Servicer, the Special Servicer or any Noteholder. No Directing Holder shall have any duty or liability to any Noteholder for any action taken, or for refraining from the taking of any action or the giving of any consent or failure to give any consent in good faith pursuant to this Agreement or any such error in judgment. By its acceptance of a Note, each Noteholder shall be deemed to have confirmed its agreement that (i) any Directing Holder may take or refrain from taking actions, or give or refrain from giving any consents or consult and make recommendations or refrain from consulting or making recommendations with respect to the Commercial Real Estate Loans, that favor the interests of any Noteholder (or holder of a Companion Participation, as applicable) over any other Noteholder, (ii) any Directing Holder may have special relationships and interests that conflict with the interests of any Noteholder, (iii) it shall take no action against any Directing Holder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and (iv) no Directing Holder shall be deemed to have been negligent or reckless, or to have acted in bad faith or engaged in willful misconduct or to have recklessly disregarded any exercise of its rights or obligations by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of the Noteholders. 00000000. (h) The Note Administrator shall: (i) upon written request (which includes via electronic mail) confirm for the Servicer, the Special Servicer, the Trustee and the Operating Advisor the occurrence or cessation of any Control Shift Event, Control Termination Event or Consultation Termination Event, (ii) upon any change in the Directing Holder or upon request, provide the name of the applicable Directing Holder to the Operating Advisor, the Trustee, the Servicer and the Special Servicer, and (iii) upon any change in the Operating Advisor or upon request, provide the name of any successor Operating Advisor to the applicable Directing Holder, the Servicer and the Special Servicer. (i) The Servicer, the Special Servicer, the Trustee or the Operating Advisor may from time to time request in writing (which includes via electronic mail) that the Note Administrator provide confirmation as to whether a Control Shift Event, Control Termination Event or a Consultation Termination Event has occurred in the twelve (12) months preceding any such request or any other period specified in such request. The Note Administrator shall respond to any such request within 10 calendar days. (j) For the avoidance of doubt, in the event the Servicer or the Special Servicer, as applicable, determines, in accordance with the Servicing Standard, that any direction or refusal to consent by the applicable Directing Holder or any advice from the applicable Directing Holder, the Operating Advisor or any Companion Participation Holder would cause the Servicer or the Special Servicer, as applicable, to violate applicable law, the terms of the applicable Loan Documents, or the terms of this Agreement, including without limitation, the Servicing Standard, the Servicer or the Special Servicer, as applicable, shall disregard such direction or refusal to consent or advice, as the case may be, and notify the applicable Directing Holder, the Operating Advisor or the applicable Companion Participation Holder of its determination, along with a reasonably detailed explanation of the basis therefor. (k) To the extent that the applicable Directing Holder has the right hereunder to give its consent or make a decision with respect to any servicing matter, in the event that the Servicer or the Special Servicer, as applicable, determines in accordance with the Servicing Standard that immediate action is necessary to protect the interests of the Issuer, the Servicer or the Special Servicer, as applicable, may take such action without waiting for the applicable Directing Holder’s response.

Appears in 1 contract

Samples: Servicing Agreement (Granite Point Mortgage Trust Inc.)

Common use of Control and Consultation Clause in Contracts