Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply: (A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted; (B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and (C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x; (D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable); (E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request; (F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and (G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust. (b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents. (c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 7 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C23), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C22), Pooling and Servicing Agreement (GS Mortgage Securities Trust 2014-Gc26)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) 5 Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the mortgage-backed securities backed by the related Serviced Pari Passu Companion Loan SecuritiesLoan; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the The applicable Master Servicer shall have the right to grant its consent to the same consent, without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if to any transfers of an interest in the Borrower under a Performing Serviced Mortgage Loan, to the extent such transfer (i) is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such BorrowerBorrower and (ii) is with respect to a Mortgage Loan as to which a Rating Agency Confirmation is not required under Section 3.08(a)(B) or (C) above; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-then aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C14), Pooling and Servicing Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2014-C15), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-Lc14)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole)Trust, approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Mortgage Loan other than a Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities); and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced ), with respect to any Mortgage Loan that (a) represents 2% or more of the then-then aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x1.2x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable3.24);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable3.24. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable The Master Servicer shall have the right to grant its consent to the same consent, without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if to any transfers of an interest in the Borrower under a Performing Mortgage Loan, to the extent such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-then current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-then aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)%, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2011-C5), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C6), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C6)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall immediately notify the Special Servicer of such request, perform an underwriting analysis in connection therewith and deliver to the Special Servicer such underwriting analysis and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder to, in accordance with the Servicing Standard, withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Serviced Mortgage Loan and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then in either case the Master Servicer shall not permit the requested transfer or assumption of such Performing Serviced Mortgage Loan. If the Special Servicer consents to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits and substitute as obligor thereunder the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage Loan DocumentsMortgage. The Master Servicer shall notify the Trustee, the applicable Master Servicer (with respect to Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan andNoteholder(s), if applicableof any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Trust Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Performing Serviced Pari Passu Companion LoanMortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall immediately notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Serviced Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected no assumption of a Serviced Mortgage Loan is or relates to a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C8), Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C5), Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C8)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing other than a Specially Serviced Pari Passu Companion Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of if such Mortgage Loan is a Serviced Loan CombinationCombination and if the Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan SecuritiesAgency; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related ), with respect to any Serviced Mortgage Loan that (a) represents 2% or more of the then-then aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x1.2x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable The Master Servicer shall have the right to grant its consent to the same consent, without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if to any transfers of an interest in the Borrower under a Performing Serviced Mortgage Loan, to the extent such transfer (i) is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such BorrowerBorrower and (ii) is with respect to a Mortgage Loan as to which a Rating Agency Confirmation is not required under Section 3.08(a)(B) or (C) above; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-then current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-then aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)%, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2012-Lc5), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2012-Lc5), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits permit the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers transfer of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits prohibit such an assignment and assumption or transfer except upon the satisfaction of specified conditions conditions, or fully prohibits prohibit such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits permit the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits prohibit such a further encumbrance except upon the satisfaction of specified conditions conditions, or fully prohibits prohibit such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan and, if applicable, a related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan or, if applicable, a related Performing Serviced Pari Passu Companion Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan or, if applicable, a related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan or, if applicable, a related Performing Serviced Pari Passu Companion Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Loan Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan or, if applicable, a related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan or, if applicable, a related Performing Serviced Pari Passu Companion Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan or, if applicable, a related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan or, if applicable, a related Performing Serviced Pari Passu Companion Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan or, if applicable, a related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan or, if applicable, a related Performing Serviced Pari Passu Companion Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan or, if applicable, a related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan or, if applicable, a related Performing Serviced Pari Passu Companion Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, Upon receiving a request for any matter described in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable this Section 3.08(a) that constitutes a Special Servicer Decision or a Material Action (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions without regard to the transaction that are set forth proviso in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.the
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C27), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C26), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2014-Lc18)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits permit the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers transfer of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits prohibit such an assignment and assumption or transfer except upon the satisfaction of specified conditions conditions, or fully prohibits prohibit such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits permit the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits prohibit such a further encumbrance except upon the satisfaction of specified conditions conditions, or fully prohibits prohibit such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective wholewhole (in the case of a Subordinate Companion Loan Holder, taking into account the subordinate nature of the related Subordinate Companion Loan)), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Loan Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class RepresentativeRepresentative (other than with respect of an Excluded Loan), if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Loan Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C28), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-C29), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2015-Nxs1)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) Loan or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) ), as the case may be, shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) 5 Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) Loan nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities); and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) Loan nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) Loan nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) Loan nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable the Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) Loan nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any Trust REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust PoolTrust; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan other than a Material Action with respect to a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Material Action on a Performing Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable The Master Servicer shall have the right to grant its consent to the same consent, without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if to any transfers of an interest in the Borrower under a Performing Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, to the extent such transfer (i) is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such BorrowerBorrower and (ii) is with respect to a Mortgage Loan as to which a Rating Agency Confirmation is not required under Section 3.08(a)(B) or (C) above; provided provided, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (SG Commercial Mortgage Securities, LLC), Pooling and Servicing Agreement (SG Commercial Mortgage Securities, LLC), Pooling and Servicing Agreement (RBS Commercial Funding Inc.)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall promptly notify the Special Servicer of such request, shall evaluate (consistent with the Servicing Standard) the experience and financial condition of the proposed transferee and the status of any conditions to transfer or assumption (as described above) and prepare a report in connection therewith and shall deliver to the Special Servicer such report and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder, within 15 days (or, in the case of a consent to a determination as to whether the conditions precedent to the subject transfer or assumption have been satisfied, within 10 days, or within such longer period as may be necessary to obtain any required consent pursuant to Section 6.11 or 6.12, as and if applicable) of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, in accordance with the Servicing Standard, to withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable. If the Special Servicer does not respond within such 15-day period, 10-day period or such longer period as set forth above, as the case may be, such party's consent shall be deemed granted; provided, that if the Special Servicer's consent is not withheld, granted or deemed granted within the aforementioned 15-day period or 10-day period, as applicable, because the Special Servicer is in the process of obtaining a consent required pursuant to Section 6.11 and/or Section 6.12, as applicable, then the Special Servicer shall provide notice to the Master Servicer of such process and the estimated time period for completion thereof. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Serviced Mortgage Loan and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer and/or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then, in each such case, the Special Servicer shall notify the Master Servicer in writing of such determination, and the Master Servicer shall notify the related Mortgagor that the requested transfer and/or assumption will not be permitted and shall restrict the requested transfer and/or assumption of the subject Performing Serviced Mortgage Loan in accordance with the Servicing Standard. If the Special Servicer consents or is deemed to consent to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits and substitute as obligor thereunder the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage Loan DocumentsMortgage. The Master Servicer shall notify the Trustee, the applicable Master Servicer (with respect to Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan andNoteholder(s), if applicableof any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Trust Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Performing Serviced Pari Passu Companion LoanMortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall promptly notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Serviced Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected no assumption of a Serviced Mortgage Loan is or relates to a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2007-C2), Pooling and Servicing Agreement (LB Commercial Mortgage Trust 2007-C3), Pooling and Servicing Agreement (LB Commercial Mortgage Trust 2007-C3)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers transfer of interests in the related Borrower, in each case case, upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or transfer or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) 5 Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the mortgage-backed securities backed by the related Serviced Pari Passu Companion Loan SecuritiesLoan; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-then aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C23), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C24), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C23)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, 3.24 and/or Section 3.26 3.26, if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Mortgage Loan other than a Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities); and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced ), with respect to any Mortgage Loan that (a) represents 2% or more of the then-then aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x1.2x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable The Master Servicer shall have the right to grant its consent to the same consent, without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if to any transfers of an interest in the Borrower under a Performing Mortgage Loan, to the extent such transfer (i) is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such BorrowerBorrower and (ii) is with respect to a Mortgage Loan as to which a Rating Agency Confirmation is not required under Section 3.08(a)(B) or (C) above; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-then current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-then aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)%, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C7), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C7)
Enforcement of Alienation Clauses. (a) If the provisions of any The Master Servicer (with respect to Mortgage Loans that are not Specially Serviced Mortgage Loan Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record, shall enforce any "due-on-sale" or Serviced Loan Combination expressly permits "due-on-encumbrance" clauses and any other restrictions contained in the assignment related Mortgage or other related loan document on transfers or further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon unless the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain Servicer, as the relevant information and review and make a determination to either case may be, has (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance determined, in its reasonable judgment (exercised in accordance with the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective wholeServicing Standard), approve the request or waive the effect that waiver of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or such restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent would be in accordance with the Servicing Standard and (and ii) complied with the applicable requirements, if any, of Section 6.11 and/or Section 6.12, as the case may be; provided that:
(i) subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of Mortgage Loan Documents and applicable law, neither the applicable Special Servicer’s receipt from the applicable Master Servicer of nor the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to the applicable Master Servicer withhold, in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a accordance with any related "due-on-sale provision is involved and the affected Serviced Mortgage Loan is a encumbrance" clause under any Mortgage Loan that is a Significant Mortgage Loan, or if, taking into account existing debt on the subject Mortgaged Property and the proposed additional debt as if such total debt were a single Mortgage Loan, the Loan-to-Value Ratio is equal to or greater than 85% or the Debt Service Coverage Ratio is equal to or less than 1.2x, unless it receives prior written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event (together with all other Mortgage Loans, if any, except that are in prior written confirmation from Fitch shall not be required unless the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan(A) is one of the ten largest Mortgage Loans then in the TrustMortgage Pool or (B) when combined with any other Mortgage Loans made to Mortgagors that are affiliated to the related Mortgagor, has constitutes one of the ten largest Mortgagor concentrations in the Mortgage Pool based on the then-current outstanding principal balance of all of the Mortgage Loans);
(ii) if the affected Mortgage Loan is a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involvedSignificant Mortgage Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a "due-on-encumbrance provision is involved, then, subject to the related sale" clause under any Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a it has received written confirmation from each Rating Agency Confirmation that such action would not result in an Adverse Rating Event (subject to Section 3.27) if except that prior written confirmation from Fitch shall not be required unless the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (bA) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% Mortgage Pool or (dB) has an aggregate debt service coverage ratio (including when combined with any other Mortgage Loans made to Mortgagors that are affiliated to the debt service related Mortgagor, constitutes one of the ten largest Mortgagor concentrations in the Mortgage Pool based on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval then-current outstanding principal balance of an assignment and assumption or all of the Mortgage Loans); provided, that, with respect to a waiver of a due-on-sale provision is involvedprovision, thenin the event that such Mortgage Loan does not meet the criteria set forth in the prior sentence, and the Mortgage Loan Documents contain a requirement for Rating Agency approval, the Master Servicer or the Special Servicer, subject to the related Mortgage Loan Documents and applicable lawSection 6.11 or Section 6.12, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in as the case of may be, may waive such requirement without Rating Agency approval in accordance with the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable)Servicing Standard;
(Eiii) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” " clause under any Mortgage Loan until it has delivered to the Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard, Section 6.11 and Section 6.12), which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative or the Great Mall Controlling Party is entitled to object pursuant to Section 6.11 or Section 6.12, as the case may be, 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) after receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information requested by the Special Servicer or the Controlling Class Representative;
(iv) subject to the related Mortgage Loan Documents and applicable law, the Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Mortgage Loan until it has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard, Section 6.11 and Section 6.12), which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative or the Great Mall Controlling Party is entitled to object pursuant to Section 6.11 or Section 6.12, as the case may be, 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) of receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information requested by the Special Servicer or the Controlling Class Representative;
(v) subject to the related Mortgage Loan Documents and applicable law, neither the Master Servicer nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, pursuant to this paragraphor approve the assumption of any Mortgage Loan, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.Trust (it being understood and agreed that, except as expressly provided herein, neither the Master Servicer nor the Special Servicer shall be obligated to cover or assume any such costs or expenses); and
(bvi) neither the Master Servicer nor the Special Servicer shall (to the extent that it is within the control thereof to prohibit such event) consent to the transfer of any Mortgaged Property that secures a Crossed Loan Group unless (i) all of the Mortgaged Properties securing such Crossed Loan Group are transferred simultaneously by the respective Mortgagor or (ii) it obtains the consent of the Controlling Class Representative, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative or the Great Mall Controlling Party is entitled to object pursuant to Section 6.11 or Section 6.12, as the case may be, 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) of receipt by the Controlling Class Representative of written notice of such action and all reasonably requested information related thereto (or, if no information is requested, within 10 Business Days (or, if applicable, 15 Business Days) of receipt of written notice). If in connection with an assumption of any Mortgage Loan the applicable Mortgage Loan Seller bears the costs and expenses associated with such assumption in accordance with the terms of the applicable Mortgage Loan Purchase Agreement, any costs and expenses subsequently recovered by the Master Servicer from the related Mortgagor in respect of such assumption shall be promptly remitted by the Master Servicer to the applicable Mortgage Loan Seller. In the case of any Mortgage Loan, the Master Servicer and the Special Servicer shall each provide the other with all such information as each may reasonably request in order to perform its duties under this section. In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Servicer, with respect to Mortgage Loan) or the applicable Special Servicer (in the case of a Loans that are not Specially Serviced Mortgage Loan) Loans, or the Special Servicer, with respect to Specially Serviced Mortgage Loans, shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(cb) Notwithstanding any other provisions of this Section 3.08(a3.08, the Master Servicer with respect to Mortgage Loans which are not Specially Serviced Mortgage Loans (without the Special Servicer's consent, but subject to delivering notice to the Special Servicer and the Controlling Class Representative (and with respect to the Great Mall Loan Pair, the Great Mall B-Noteholder)) or the Special Servicer with respect to Specially Serviced Mortgage Loans, as applicable, may grant, without any Rating Agency confirmation as provided in connection with any transfer of an interest in paragraph (a) above, a Mortgagor's request for consent to subject the related Borrower under a Performing Serviced Mortgage Loan Mortgaged Property to an easement, right-of-way or related Serviced Pari Passu Companion Loanother similar agreement for utilities, the applicable Master Servicer shall have the right to grant its access, parking, public improvements or another purpose, and may consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms subordination of the related Mortgage Loan Documents without to such easement, right-of-way or other similar agreement provided the exercise of any lender approval Master Servicer or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Special Servicer, as applicable, shall have determined in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated accordance with the Borrower under Servicing Standard that such Mortgage Loaneasement, is one of right-of-way or other similar agreement shall not materially interfere with the then-current top ten Mortgage Loans (use of the related Mortgaged Property, or the security intended to be provided by Stated Principal Balance) in such Mortgage, the related Mortgagor's ability to repay the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000Loan, or has a Stated Principal Balance that equals materially or exceeds 5% adversely affect the value of the then-aggregate Stated Principal Balance of such Mortgaged Property or cause the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are cease to be payable by the related Borrower to the extent provided a qualified mortgage loan for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationREMIC purposes.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc Trust 2004-Mkb1)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall immediately notify the Special Servicer of such request, shall evaluate (consistent with the Servicing Standard) the experience and financial condition of the proposed transferee and the status of any conditions to transfer or assumption (as described above) and prepare a report in connection therewith and shall deliver to the Special Servicer such report and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder, within 15 days (or, in the case of a consent to a determination as to whether the conditions precedent to the subject transfer or assumption have been satisfied, within 10 days) of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, in accordance with the Servicing Standard, to withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Serviced Mortgage Loan and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer and/or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then, in each such case, the Special Servicer shall notify the Master Servicer in writing of such determination, and the Master Servicer shall notify the related Mortgagor that the requested transfer and/or assumption will not be permitted and shall restrict the requested transfer and/or assumption of the subject Performing Serviced Mortgage Loan in accordance with the Servicing Standard. If the Special Servicer consents to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits and substitute as obligor thereunder the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage. The Master Servicer shall notify the Trustee, the Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan DocumentsNoteholder(s) and, in the case of a Split Trust Mortgage Loan, the applicable Master Servicer (Loan-Specific Class Representative, of any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with respect a Review Package. Subject to the terms of the related loan documents, no assumption of a Performing Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Trust Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan andshall be made or transfer of interest in a Mortgagor approved, if applicableunless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Performing Serviced Pari Passu Companion LoanMortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall immediately notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Serviced Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected no assumption of a Serviced Mortgage Loan is or relates to a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C4), Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C4)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, provided that the matter does not involve a Special Servicer Decision or a Material Action, unless the Master Servicer and the Special Servicer mutually agree (in accordance with the last paragraph of this Section 3.08(a)) that the Master Servicer shall process such request pursuant to the terms hereof) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) in any other case), as the case may be, shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer (if the Master Servicer is processing the subject request) shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) 5 Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andnor the Special Servicer, if as applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the mortgage-backed securities backed by the related Serviced Pari Passu Companion Loan SecuritiesLoan; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andnor the Special Servicer, if as applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andnor the Special Servicer, if as applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections Section 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andnor the Special Servicer, if as applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable the Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andnor the Special Servicer, if as applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, Upon receiving a request for any matter described in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable this Section 3.08(a) that constitutes a Special Servicer Decision or a Material Action (or without regard to the applicable proviso in the definition of “Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approvalDecision” or “Material Action”, as applicable) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Performing Serviced Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debtPerforming Serviced Pari Passu Companion Loan, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it hasforward such request to the Special Servicer and, or grant any consent it is otherwise entitled notwithstanding anything herein to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraphthe contrary, unless in any the Master Servicer and the Special Servicer mutually agree that the Master Servicer shall process such caserequest, all associated costs the Special Servicer shall process such request and expenses are covered without any expense the Master Servicer shall have no further obligation with respect to the Trustsuch request or such Special Servicer Decision or Material Action.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, provided that the matter does not involve a Special Servicer Decision or a Material Action, unless the Master Servicer and the Special Servicer mutually agree (in accordance with the last paragraph of Section 3.08(a)) that the Master Servicer shall process such request pursuant to the terms hereof) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loanany other case) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable The Master Servicer shall have the right to grant its consent to the same consent, without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable the Master Servicer consent) if to any transfers of an interest in the Borrower under a Performing Serviced Mortgage Loan, to the extent such transfer (i) is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower, (ii) is with respect to a Mortgage Loan as to which a Rating Agency Confirmation is not required under Section 3.08(a)(B) or (C) above and (iii) does not involve incurring new mezzanine financing or a change in control of the borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2014-Lc16), Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2014-Lc16)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced As to each Mortgage Loan or Serviced Loan Combination expressly permits that contains a provision in the assignment nature of the related Mortgaged Property to, and assumption of a (i) "due-on-sale" clause that by its terms (1) provides that such Mortgage Loan by, another Person, shall (or may at the transfers of interests in the related Borrower, in each case mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgagor; or (2) provides that such Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer mortgagee in connection with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consentsale or other transfer, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group so long as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then included in the Trust Fund, or (bii) is one of the ten largest as to each Mortgage Loans then Loan that contains a provision in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver nature of a "due-on-sale provision is involved, then, subject to encumbrance" clause that by its terms:
(1) provides that such Mortgage Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) Property; or (ii2) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order mortgagee to incur subordinate debtthe creation of any such additional lien or other encumbrance on the related Mortgaged Property, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Mortgage Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject . Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause, unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Mortgage Loans in the manner set forth in the immediately below clauses (i) through (vii):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without first obtaining the consent of the Special Servicer. The Special Servicer's consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the last sentence of the first paragraph of clause (ii) below and the Special Servicer shall not have responded in writing, via fax or e-mail within [ten] Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties).
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Directing Certificateholder for any Mortgage Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e-mail within [ten] Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) Notwithstanding anything to the contrary contained herein, if the Special Servicer, in accordance with the Servicing Standard, (a) notifies the Master Servicer of its determination with respect to any Mortgage Loan (which by its terms permits transfer, assumption or further encumbrance without mortgagee consent provided certain conditions are satisfied) that the conditions required under the related loan documents have not been satisfied or (b) the Special Servicer objects in writing to the Master Servicer's determination that such conditions have been satisfied, then the Master Servicer shall not permit transfer, assumption or further encumbrance of such Mortgage Loan.
(iv) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a), if any Mortgage Loan:
(1) represents greater than [___]% of the then outstanding principal balance of the Mortgage Pool or has an outstanding principal balance of greater than $[_________];
(2) has an outstanding principal balance of greater than $[_________]; or
(3) is one of the [___] largest Mortgage Loans in the Trust Fund based on outstanding principal balance or has an outstanding principal balance of greater than $[_________], then neither the Master Servicer nor Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(v) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc), Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers transfer of interests in the related Borrower, in each case case, upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or transfer or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) 5 Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the mortgage-backed securities backed by the related Serviced Pari Passu Companion Loan SecuritiesLoan; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such the Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable the Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-then aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Trust 2014-Lc18), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C25)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall immediately notify the Special Servicer of such request, shall evaluate (consistent with the Servicing Standard) the experience and financial condition of the proposed transferee and the status of any conditions to transfer or assumption (as described above) and prepare a report in connection therewith and shall deliver to the Special Servicer such report and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder, in accordance with the Servicing Standard, to withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Serviced Mortgage Loan and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then in either case the Master Servicer shall not permit the requested transfer or assumption of such Performing Serviced Mortgage Loan. If the Special Servicer consents to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits and substitute as obligor thereunder the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage Loan DocumentsMortgage. The Master Servicer shall notify the Trustee, the applicable Master Servicer (with respect to Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan Noteholder(s) and, if applicablein the case of a Split Trust Mortgage Loan, the Class IUU Representative, of any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the terms of the related Performing loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Pari Passu Companion LoanTrust Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Mortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall immediately notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Serviced Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected no assumption of a Serviced Mortgage Loan is or relates to a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C1), Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C1)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole)Trust, approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Mortgage Loan other than a Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities); and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced ), with respect to any Mortgage Loan that (a) represents 2% or more of the then-then aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x1.2x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.263.24, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.263.24, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable The Master Servicer shall have the right to grant its consent to the same consent, without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if to any transfers of an interest in the Borrower under a Performing Mortgage Loan, to the extent such transfer (i) is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such BorrowerBorrower and (ii) is with respect to a Mortgage Loan as to which a Rating Agency Confirmation is not required under Section 3.08(a)(B) or (C) above; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-then current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-then aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C9), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C9)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the Person and/or transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of certain interests in such Borrower) requests approval for such an assignment and assumption Mortgagor (including, without limitation, sales or transfer or enters into a transfer transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of interest(s) direct or indirect interests in such Borrower in violation of the related Mortgage Loan Documents, Mortgagor or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbranceits owners) or, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation case of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall immediately notify the Special Servicer of such request, shall evaluate (consistent with the Servicing Standard) the experience and financial condition of the proposed transferee and the status of any conditions to transfer or assumption (as described above) and prepare a report in connection therewith and shall deliver to the Special Servicer such report and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable proposed assumption. The Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, neverthelessright hereunder, in accordance with the Servicing Standard, without to withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the need conditions to obtain transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent or approval hereunder (and without on the need part of the Special Servicer shall be subject to obtain a Rating Agency ConfirmationSection 3.08(d), permit Section 6.11 and/or Section 6.12, in each case if and as applicable. If the related Borrower Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject any such request for such transfer and/or assumption with respect to the related any Performing Serviced Mortgage Loan Documents and applicable lawand/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then in either case the NCB Master Servicer shall not waive any right it has, permit the requested transfer or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a such Performing Serviced Mortgage Loan) or . If the applicable Special Servicer (in consents to such proposed transfer and/or assumption and/or determines that the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any conditions to transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loanassumption have been satisfied, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with process such applicable Master Servicer consent) if such transfer is allowed under the terms request of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such BorrowerMortgagor; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, the Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under such Performing Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Master Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is part senior to, or on parity with, the lien of a Loan Combinationthe related Mortgage. The Master Servicer shall notify the Trustee, an analogous rating agency confirmation from the Special Servicer, each Pari Passu Companion Rating Agency, if applicable the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan Noteholder(s) and, in the case of the ______________ Trust Mortgage Loan, the Class ___ Representative, of any assumption or substitution agreement executed pursuant to this Section 3.27(k)3.08(a) (the costs and shall forward thereto a copy of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection agreement together with such transfers of interest as Additional Master Servicing Compensation.a
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Structured Asset Securities Corp Ii), Pooling and Servicing Agreement (Structured Asset Securities Corp Ii)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall immediately notify the Special Servicer of such request, shall evaluate (consistent with the Servicing Standard) the experience and financial condition of the proposed transferee and the status of any conditions to transfer or assumption (as described above) and prepare a report in connection therewith and shall deliver to the Special Servicer such report and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder, within 15 days (or, in the case of a consent to a determination as to whether the conditions precedent to the subject transfer or assumption have been satisfied, within 10 days) of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, in accordance with the Servicing Standard, to withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Serviced Mortgage Loan and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer and/or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then, in each such case, the Special Servicer shall notify the Master Servicer in writing of such determination, and the Master Servicer shall notify the related Mortgagor that the requested transfer and/or assumption will not be permitted and shall restrict the requested transfer and/or assumption of the subject Performing Serviced Mortgage Loan in accordance with the Servicing Standard. If the Special Servicer consents to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits and substitute as obligor thereunder the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage Loan DocumentsMortgage. The Master Servicer shall notify the Trustee, the applicable Master Servicer (with respect to Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan andNoteholder(s), if applicableof any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Trust Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Performing Serviced Pari Passu Companion LoanMortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall immediately notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Serviced Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected no assumption of a Serviced Mortgage Loan is or relates to a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2006-C7), Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2006-C7)
Enforcement of Alienation Clauses. (a) If In the provisions event of any Serviced intent of, or request on the part of, a Borrower or Guarantor under the Mortgage Loan or Serviced Loan Combination expressly permits any principal of such Borrower or Guarantor in connection with the assignment transfer or further encumbrance of a Site or the transfer of an interest in such Borrower, the Servicer, on behalf of the related Mortgaged Property toTrustee as the mortgagee of record, shall evaluate any right to transfer and assumption the terms of such the Mortgage Loan byDocuments, another Person, shall enforce the restrictions contained in the Mortgages on transfers or further encumbrances of the Sites and on transfers of interests in the related any Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoingdetermined, in no event will the applicable Master Servicer’s approval its reasonable, good faith judgment, that waiver of an assignment and assumption or further encumbrance such restrictions would be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard; provided, without however, that the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any such material right it has, or grant any consent it is otherwise entitled to withhold, in accordance withhold with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraphrespect thereto, unless in any such case, all associated costs and expenses are covered without any expense to it has received Rating Agency Confirmation. In making the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or determination that the waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunderis in accordance with the Servicing Standard, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a)shall, in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loanamong other things, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thattake into account, subject to the terms of the related Mortgage Loan Documents Servicing Standard and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, any increase in taxes (based on a fully assessed number calculated off of the proposed purchase price) as a result of the transfer. The Servicer shall compute the Debt Service Coverage Ratio under the Mortgage Loan as of the end of the most recent calendar quarter and using the proposed purchase price and shall provide copies of the results of such calculation to each Rating Agency showing a comparison of the recalculated Debt Service Coverage Ratio versus the Debt Service Coverage Ratio as of the end of the most recent calendar quarter. If the Servicer (i) collects an assumption fee in connection with any transfer or proposed transfer of any interest in a Borrower or any Site and (ii) fails to collect from such Borrower or the related transferee (or waives the collection of) any fees, expenses or costs associated with that transfer or proposed transfer which provisions are required to be paid by such Borrower or related transferee, under the terms of the Mortgage Loan Documents, then the Servicer shall not apply the assumption fee (but only up to the extent of such fee collected) to first cover any such fees, expenses or costs that would otherwise be waived by payable from or reimbursable out of the applicable Master ServicerTrust Fund, andand only the portion of such assumption fee remaining after payment of such fees, if not paid, such expenses and costs shall be paid by and reimbursed payable to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master additional compensation under Section 3.11; and provided, further, that the Servicer shall be entitled (to collect the extent permitted under the Mortgage Loan Documents) demand that the Borrower pay all fees, costs and receive from Borrowers expenses with respect to such transfer unless the Servicer determines that such collection of any customary fees in connection with such transfers of interest as Additional Master fees, costs and expenses would violate the Servicing CompensationStandard.
Appears in 2 contracts
Samples: Trust and Servicing Agreement (American Tower Corp /Ma/), Trust and Servicing Agreement (American Tower Corp /Ma/)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the Person and/or transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of certain interests in such Borrower) requests approval for such an assignment and assumption Mortgagor (including, without limitation, sales or transfer or enters into a transfer transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of interest(s) direct or indirect interests in such Borrower in violation of the related Mortgage Loan Documents, Mortgagor or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbranceits owners) or, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation case of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall immediately notify the Special Servicer of such request, shall evaluate (consistent with the Servicing Standard) the experience and financial condition of the proposed transferee and the status of any conditions to transfer or assumption (as described above) and prepare a report in connection therewith and shall deliver to the Special Servicer such report and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable proposed assumption. The Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, neverthelessright hereunder, in accordance with the Servicing Standard, without to withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the need conditions to obtain transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent or approval hereunder (and without on the need part of the Special Servicer shall be subject to obtain a Rating Agency ConfirmationSection 3.08(d), permit Section 6.11 and/or Section 6.12, in each case if and as applicable. If the related Borrower Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject any such request for such transfer and/or assumption with respect to the related any Performing Serviced Mortgage Loan Documents and applicable lawand/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then in either case the NCB Master Servicer shall not waive any right it has, permit the requested transfer or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a such Performing Serviced Mortgage Loan) or . If the applicable Special Servicer (in consents to such proposed transfer and/or assumption and/or determines that the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any conditions to transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loanassumption have been satisfied, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with process such applicable Master Servicer consent) if such transfer is allowed under the terms request of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such BorrowerMortgagor; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, the Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under such Performing Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Master Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is part senior to, or on parity with, the lien of a Loan Combinationthe related Mortgage. The Master Servicer shall notify the Trustee, an analogous rating agency confirmation from the Special Servicer, each Pari Passu Companion Rating Agency, if applicable the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan Noteholder(s) and, in the case of the Cherryvale Mall Trust Mortgage Loan, the Class CM Representative, of any assumption or substitution agreement executed pursuant to this Section 3.27(k)3.08(a) (the costs and shall forward thereto a copy of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection agreement together with such transfers of interest as Additional Master Servicing Compensation.a
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C7)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion that is a Pooled Mortgage Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer (and, if a Serviced Mortgage Loan Group is involved, to the related Serviced Mortgage Loan Group Controlling Party) with (x) written notice of any Borrower request for such assignment and assumption or such encumbranceassumption, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) with all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section Sections 3.24, 3.27, 3.28 and/or Section 3.26 3.29, if and as applicable), and (3) except with respect to any Nationwide Pooled Mortgage Loan, PCFII Pooled Mortgage Loan, if any such consent has not been expressly denied within fifteen (15) seven Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable such Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted, and (4) solely with respect to any PCFII Pooled Mortgage Loan or any Nationwide Pooled Mortgage Loan, any such consent shall be deemed to have been granted if such consent has not been expressly denied either (x) within ten Business Days of the applicable Special Servicer’s receipt of the applicable Master Servicer’s recommendations and analysis, if the applicable Special Servicer has not requested additional information as described above on or before the date that is four Business Days following the applicable Special Servicer’s initial receipt of the applicable Master Servicer’s recommendations and analysis, or (y) within six Business Days following the applicable Special Servicer’s receipt of the additional information requested by the applicable Special Servicer as described above, if the applicable Special Servicer has requested such additional information on or before the date that is four Business Days following the applicable Special Servicer’s initial receipt of the applicable Master Servicer’s recommendations and analysis);
(B1) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Pooled Mortgage Loan that (together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan) is one of the ten largest Pooled Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Pooled Mortgage Loan and, if applicable, any related Performing other than a Specially Serviced Pari Passu Companion Pooled Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates and (2) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Serviced Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the applicable Special Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) unless and in the case of a Serviced Loan Combination, the equivalent until it has received written confirmation from each Pari Passu Companion applicable Rating Agency with respect to for the related Serviced Non-Pooled Pari Passu Companion Loan Securities; andSecurities that such action would not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(C1) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation that such approval or waiver is the subject action would not result in an Adverse Rating Event with respect to any Class of a Rated Certificates from each Rating Agency Confirmation (subject Agency, with respect to Section 3.27) if the related any Serviced Pooled Mortgage Loan that (a) represents 2% or more of the then-then aggregate principal balance of all of the Pooled Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Pooled Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x1.2x and (2) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved and the affected Serviced Mortgage Loan is a Serviced Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the applicable Special Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities that such action would not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable a Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable a Special Servicer, it has obtained the consent of the Subordinate Controlling Class RepresentativeRepresentative and/or the related Serviced Mortgage Loan Group Controlling Party, if and to the extent required under Sections 3.24 3.24, 3.27, 3.28 and/or Section 3.263.29, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any confirmation(s) of the absence of an Adverse Rating Agency ConfirmationEvent) are covered without any expense to the Trust or (in the case of a Serviced Mortgage Loan CombinationGroup) any expense to any related Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an any Adverse Grantor Trust Event with respect to the any Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable a Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 Sections 3.24, 3.27, 3.28 and/or Section 3.263.29, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer if (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretionexercise). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the The applicable Master Servicer shall have the right to grant its consent to any transfers of an interest in the same without Borrower under a Performing Serviced Mortgage Loan, to the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if extent such transfer is allowed under the terms of the related Mortgage Loan Documents (without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion), including a any consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Pooled Mortgage Loan that, together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan, has a Stated Principal Balance that equals or exceeds 5% of the then aggregate Stated Principal Balance of the Mortgage Pool or is one of the then-then current top ten Pooled Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, Pool or has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)%, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a it has received written confirmation from each Rating Agency Confirmation that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense); provided, further, however, that, subject to Section 3.27the terms of the related Mortgage Loan Documents and applicable law, if (i) (and, in the case of any applicable matter involves a Serviced Mortgage Loan Group that includes one or more Serviced Non-Pooled Pari Passu Companion Loans and (ii) the transfer is part of a Loan Combinationan interest in the Borrower greater than 49%, an analogous rating agency then the applicable Master Servicer shall not consent to such transfer unless and until it has received written confirmation from each Rating Agency for the Rated Certificates that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates rated by such Rating Agency and also a written confirmation from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities that such action would not result in an Adverse Rating Agency, if applicable pursuant Event with respect to Section 3.27(k)) any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr16)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion that is a Pooled Mortgage Loan, unless such Master Servicer has obtained -144- the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer (and, if a Serviced Mortgage Loan Group is involved, to the related Serviced Mortgage Loan Group Controlling Party) with (x) written notice of any Borrower request for such assignment and assumption or such encumbranceassumption, (y) the applicable Master Servicer’s written 's recommendations and analysis, and (z) with all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, 3.27 and/or Section 3.26 3.28, if and as applicable), and (3) except with respect to any Nationwide Pooled Mortgage Loan, PCF Pooled Mortgage Loan or PCFII Pooled Mortgage Loan, if any such consent has not been expressly denied within fifteen (15) seven Business Days (or at least five (5) Business Days after the time period provided for or, in the related case of the South Bay Galleria Loan Group, such longer period of time, if any, that is provided in Section 18(a) of the South Bay Galleria Intercreditor Agreement) of the applicable Special Servicer’s 's receipt from the applicable Master Servicer of the applicable such Master Servicer’s written 's recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted, and (4) solely with respect to any PCF Pooled Mortgage Loan, PCFII Pooled Mortgage Loan or any Nationwide Pooled Mortgage Loan, any such consent shall be deemed to have been granted if such consent has not been expressly denied either (x) within ten Business Days of the applicable Special Servicer's receipt of the applicable Master Servicer's recommendations and analysis, if the applicable Special Servicer has not requested additional information as described above on or before the date that is four Business Days following the applicable Special Servicer's initial receipt of the applicable Master Servicer's recommendations and analysis, or (y) within six Business Days following the applicable Special Servicer's receipt of the additional information requested by the applicable Special Servicer as described above, if the applicable Special Servicer has requested such additional information on or before the date that is four Business Days following the applicable Special Servicer's initial receipt of the applicable Master Servicer's recommendations and analysis);
(B1) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Pooled Mortgage Loan that (together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan) is one of the ten largest Pooled Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Pooled Mortgage Loan and, if applicable, any related Performing other than a Specially Serviced Pari Passu Companion Pooled Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates and (2) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Serviced Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the applicable Special Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) unless and in the case of a Serviced Loan Combination, the equivalent until it has received written confirmation from each Pari Passu Companion applicable Rating Agency with respect to for the related Serviced Non-Pooled Pari Passu Companion Loan Securities; andSecurities that such action would not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(C1) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation that such approval or waiver is the subject action would not result in an Adverse Rating Event with respect to any Class of a Rated Certificates from each Rating Agency Confirmation (subject Agency, with respect to Section 3.27) if the related any Serviced Pooled Mortgage Loan that (a) represents 2% or more of the then-then aggregate principal balance of all of the Pooled Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Pooled Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x1.2x and (2) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved and the affected Serviced Mortgage Loan is a Serviced Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the applicable Special Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities that such action would not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable a Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable a Special Servicer, it has obtained the consent of the Subordinate Controlling Class RepresentativeRepresentative and/or the related Serviced Mortgage Loan Group Controlling Party, if and to the extent required under Sections 3.24 3.24, 3.27 and/or Section 3.263.28, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any confirmation(s) of the absence of an Adverse Rating Agency ConfirmationEvent) are covered without any expense to the Trust or (in the case of a Serviced Mortgage Loan CombinationGroup) any expense to any related Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an any Adverse Grantor Trust Event with respect to the any Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable a Master Servicer’s 's recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 Sections 3.24, 3.27 and/or Section 3.263.28, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s 's approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer if (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretionexercise). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the The applicable Master Servicer shall have the right to grant its consent to any transfers of an interest in the same without Borrower under a Performing Serviced Mortgage Loan, to the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if extent such transfer is allowed under the terms of the related Mortgage Loan Documents (without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion), including a any consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Pooled Mortgage Loan that, together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan, has a Stated Principal Balance that equals or exceeds 5% of the then aggregate Stated Principal Balance of the Mortgage Pool or is one of the then-then current top ten Pooled Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, Pool or has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)%, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a it has received written confirmation from each Rating Agency Confirmation that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense); provided, further, however, that, subject to Section 3.27the terms of the related Mortgage Loan Documents and applicable law, if (i) (and, in the case of any applicable matter involves a Serviced Mortgage Loan Group that includes one or more Serviced Non-Pooled Pari Passu Companion Loans and (ii) the transfer is part of a Loan Combinationan interest in the Borrower greater than 49%, an analogous rating agency then the applicable Master Servicer shall not consent to such transfer unless and until it has received written confirmation from each Rating Agency for the Rated Certificates that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates rated by such Rating Agency and also a written confirmation from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities that such action would not result in an Adverse Rating Agency, if applicable pursuant Event with respect to Section 3.27(k)) any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr14)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced With respect to all Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, Loans other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c)Loans, the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers of interests in the related Mortgagor, unless the Master Servicer (with the written consent of the Special Servicer) or the Special Servicer, as applicable, has determined, consistent with the Servicing Standard, that waiver of such restrictions would be in accordance with the Servicing Standard. Promptly after the Master Servicer (with the written consent of the Special Servicer) or the Special Servicer, as applicable, has made any such determination, the Master Servicer or the Special Servicer shall prepare all documents necessary deliver to the Trustee, the Rating Agencies and appropriate each other an Officers' Certificate setting forth the basis for such purposes determination. The Master Servicer or the Special Servicer shall not exercise (and the Special Servicer shall coordinate not consent to) any such waiver in respect of a due-on-encumbrance provision of any Mortgage Loan without receiving the prior written confirmation from the Rating Agencies that such action would not result in a downgrading, qualification or withdrawal of the ratings then assigned to the Certificates. The Master Servicer or the Special Servicer shall not exercise (and the Special Servicer shall not consent to) any such waiver in respect of a due-on-sale provision of any Mortgage Loan for which the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the related Borrower Mortgagor on such Mortgage Loan, are (i) as to DCR equal to or greater than 2% of the aggregate Stated Principal Balance of all Mortgage Loans and (ii) as to Standard & Poor's, equal to or greater than 5% of the aggregate Stated Principal Balance of all Mortgage Loans or $20,000,000, without receiving the prior written confirmation from the applicable Rating Agency that such action would not result in a downgrading, qualification (if applicable) or withdrawal of any of the ratings then assigned to the Certificates. In the event that such Mortgage Loan does not meet the criteria set forth in (i) and (ii) in the prior sentence, and the Mortgage Loan documents contain a requirement for Rating Agency approval, the due execution and delivery of Master Servicer or the Special Servicer may waive such documentsrequirement without Rating Agency approval in accordance with the Servicing Standards.
(cb) Notwithstanding any other provisions of this Section 3.08(a)3.08, the Master Servicer (without the Special Servicer's consent) or the Special Servicer, as applicable, may grant, without any Rating Agency confirmation as provided in connection with any transfer of an interest in paragraph (a) above, a Mortgagor's request for consent to subject the related Borrower under a Performing Serviced Mortgage Loan Mortgaged Property to an easement or related Serviced Pari Passu Companion Loanright-of-way for utilities, the applicable Master Servicer shall have the right to grant its access, parking, public improvements or another purpose, and may consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms subordination of the related Mortgage Loan Documents without to such easement or right-of-way provided the exercise of any lender approval Master Servicer or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Special Servicer, as applicable, shall have determined in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated accordance with the Borrower under Servicing Standards that such Mortgage Loan, is one of easement or right-of-way shall not materially interfere with the then-current top ten Mortgage Loans (use of the related Mortgaged Property, or the security intended to be provided by Stated Principal Balance) in such Mortgage, the related Mortgagor's ability to repay the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000Loan, or has a Stated Principal Balance that equals materially or exceeds 5% adversely affect the value of the then-aggregate Stated Principal Balance of such Mortgaged property or cause the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are cease to be payable by the related Borrower to the extent provided a qualified mortgage loan for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationREMIC purposes.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
Enforcement of Alienation Clauses. (a) If With respect to those Mortgage Loans it is obligated to service hereunder, each of the provisions Master Servicer and the Special Servicer, as applicable, on behalf of any Serviced the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage Loan on transfers or Serviced Loan Combination expressly permits the assignment further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon unless the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andor the Special Servicer, if as applicable, any related Performing Serviced Pari Passu Companion Loan) or has determined, consistent with the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove Servicing Standard, that waiver of such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent would be in accordance with the Servicing Standard (and subject to Section 3.24Standard. Promptly after the Master Servicer or the Special Servicer, and/or Section 3.26 if and as applicable), and (3) if has made any such consent has not been expressly denied within fifteen (15) Business Days (determination, the Master Servicer or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available , as applicable, shall deliver to the applicable Master Servicer in order to make an informed decisionTrustee, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved the Majority Subordinate Certificateholder, the Rating Agencies and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loansuch determination is made by the Special Servicer) an Officers' Certificate setting forth the basis for such determination. Neither the Master Servicer nor the applicable Special Servicer shall (with a) grant any such waiver in respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related for any Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless without receiving (i) all the prior written confirmation from the Rating Agencies that such action would not result in a downgrading, qualification or withdrawal of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant ratings then assigned to the approval procedures described in clause Certificates (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable the Special Servicer, as applicable, shall be permitted use its reasonable efforts to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loanscost, if any, that are in of obtaining such confirmation paid by the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation Mortgagor; if such Serviced Loan Combination was serviced thereundercost is not paid by the Mortgagor, the Master Servicer shall advance such amount as a Servicing Advance, unless such Advance would be a Nonrecoverable Advance) and (ii) the transfer is approval of an interest the Controlling Class Representative, which if not received by the Master Servicer or Special Servicer, as applicable, within ten Business Days of the delivery of the related notices shall be deemed to be given; provided, the Controlling Class Representative may not unreasonably withhold such approval and may not cause the Master Servicer or the Special Servicer to violate any terms or provisions of this Agreement or any other agreement contemplated hereby, or (b) grant a waiver in respect of a due on sale provision for any Mortgage Loan (or a group of Mortgage Loans that are cross-collateralized or cross defaulted with each other or which relate to a single Mortgagor or group of affiliated Mortgagors) that has a then current stated Principal Balance at the Borrower greater than 49time of such determination either (i) in excess of 5% of the aggregate the current Stated Principal Balance of all Mortgage Loans or otherwise (ii) in excess of $20 million, without receiving (x) prior written confirmation from the Rating Agencies that such action would not result in a change in control downgrading, qualification or withdrawal of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative ratings then assigned to the foregoing)Certificates (the Master Servicer or the Special Servicer, then as applicable, shall use its reasonable efforts to have the applicable cost, if any, of obtaining such confirmation paid by the Mortgagor; if such cost is not paid by the Mortgagor, the Master Servicer shall advance such amount as a Servicing Advance, unless such Advance would be a Nonrecoverable Advance) and (y) the approval of the Controlling Class Representative, which if not consent to such transfer unless and until such transfer is received by the subject Master Servicer or Special Servicer, as applicable, within ten Business Days of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case delivery of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are related notices shall be deemed to be payable by given; provided, the related Borrower to Controlling Class Representative may not unreasonably withhold such approval and may not cause the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers violate any customary fees in connection with such transfers terms or provisions of interest as Additional Master Servicing Compensationthis Agreement or any other agreement contemplated hereby.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Pass Through Cert Series 1998-C3)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or As to each Serviced Loan Combination expressly permits that contains a provision in the assignment nature of a (i) "due-on-sale" clause (which includes, without limitation, sales or transfers of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, (in full or in part) or the transfers sale, transfer, pledge or hypothecation of interests direct or indirect interest in the related BorrowerBorrower or its owners), in each case which by its terms (1) provides that such Serviced Loan shall (or may at the mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Mortgagor; (2) provides that such Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice mortgagee or satisfaction of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, certain conditions in connection with any such approval sale or waiverother transfer, consent or agree to any modification, waiver or amendment of any term or provision of for so long as such Serviced Mortgage Loan that would result is included in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor the Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan Fund or (y)(a3) provides that such Serviced Loan may be assumed or transferred without the transaction is permitted under consent of the related Mortgage Loan Documents and (b) the mortgagee provided that certain conditions to the transaction that are set forth in the related Mortgage loan documents are satisfied, or (ii) as to each Serviced Loan Documents do not include that contains a provision in the approval nature of a "due-on-encumbrance" clause (including, without limitation, any mezzanine financing of the lender related Borrower or the exercise related Mortgaged Property or any sale or transfer of lender discretion preferred equity in such Borrower or its direct or indirect owners), that by its terms: (1) provides that such Serviced Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other than confirming the satisfaction of the other conditions to the transaction set forth in encumbrance on the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or Mortgaged Property; (2) requires the consent of the Mortgagee mortgagee or satisfaction of certain conditions to the creation of any such additional lien or other encumbrance on the related Mortgaged Property; or (3) provides that such Serviced Loan may be further encumbered provided that certain conditions set forth in order to incur subordinate debtthe loan documents have been satisfied, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Serviced Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Serviced Loan (x) to accelerate the payments thereon, (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without Standard or (z) determine whether the need to obtain any consent or approval hereunder conditions set forth in clause (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions a)(i)(3) of this paragraph have been met; provided that, subject satisfied. Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause (including, but not limited to, making any determination that the conditions set forth in clauses (a)(i)(3) and (a)(ii)(3) of this Section 3.08 have been satisfied), unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Serviced Loans in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause (including, but not limited to, making any determination that the conditions set forth in clauses (a)(i)(3) and (a)(ii)(3) of this Section 3.08 have been satisfied) without first obtaining the consent of the Special Servicer. The Special Servicer's consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the immediately succeeding sentence and all information reasonably requested by the Special Servicer and the Special Servicer shall not have responded in writing, via fax or e mail within 15 Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties). In connection with the request set forth above, the Master Servicer shall provide to the Special Servicer written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Special Servicer shall reasonably request and a request for approval by the Special Servicer.
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Directing Certificateholder for (a) any Non-Partitioned Loan and/or Post CAP Whole Loan that is a Performing Serviced Loan or (b) for any Specially Serviced Loan that is a Non-Partitioned Loan and/or Post CAP Whole Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e mail within ten Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) With respect to any A/B Whole Loan for which a related Control Appraisal Period does not exist, (A) the Master Servicer with respect to those time periods when such Loan is a Performing Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Special Servicer, which consent shall not be given without the Special Servicer first obtaining the consent of the related Controlling Holder, and (B) the Special Servicer with respect to those time periods when either such Loan is a Specially Serviced Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the related Controlling Holder. Consent by a Controlling Holder shall be deemed given if the Master Servicer or Special Servicer, as applicable, shall have provided such Controlling Holder written notice of the matter together with all of the information set forth in the last sentence of Section 3.08(a)(ii) and such Controlling Holder shall not have responded in writing, via fax or email within ten Business Days of such request.
(iv) Notwithstanding anything to the contrary contained herein, the Master Servicer shall not permit any such transfer, assumption or further encumbrance of such Serviced Loan or related Mortgaged Property or interests in the related Borrower, if the Special Servicer, in accordance with the Servicing Standard, (a) notifies the Master Servicer of its determination with respect to any Serviced Loan (which by its terms permits the transfer, assumption or further encumbrance without mortgagee consent provided certain conditions are satisfied and the determination as to whether any such conditions are satisfied would require the mortgagee to exercise the judgment of a reasonable prudent commercial lender) that the conditions required under the related loan documents have not been satisfied or (b) objects in writing to the Master Servicer's determination that such conditions have been satisfied with respect to any such Serviced Loan.
(v) [RESERVED].
(vi) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a), if any Mortgage Loan (other than with respect to any Non-Serviced Mortgage Loan, which is governed by the related Non-Serviced Loan Pooling and Servicing Agreement):
(1) has a then outstanding principal balance of greater than $5,000,000 and represents greater than 5.0% of the then outstanding principal balance of the Mortgage Pool;
(2) has a then outstanding principal balance of greater than $35,000,000; or
(3) has a then outstanding principal balance of greater than $5,000,000 and is one of the ten largest Mortgage Loans in the Mortgage Pool based on the then outstanding principal balance of the Mortgage Pool, then neither the Master Servicer nor Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vii) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-encumbrance" clause as described in Section 3.08(a), if any Mortgage Loan (other than with respect to any Non-Serviced Mortgage Loan, which is governed by the related Non-Serviced Loan Pooling and Servicing Agreement):
(1) represents greater than 2.0% of the then outstanding principal balance of the Mortgage Pool;
(2) is at the time one of the ten largest Mortgage Loans or Cross-Collateralized Set of Mortgage Loans by outstanding principal balance in the Mortgage Pool or has a then outstanding principal balance of greater than $20,000,000; or
(3) after taking into consideration any additional indebtedness secured by the related Mortgaged Property and any mezzanine debt, the loan-to-value ratio for such Mortgage Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor the Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-encumbrance" clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Set unless the Master Servicer or Special Servicer, as applicable, shall have obtained written confirmation from each Rating Agency that such action shall not result in a qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates or Companion Loan Securities (if applicable).
(viii) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File. Notwithstanding anything herein to the contrary, the Master Servicer shall approve and close, without the consent of the Special Servicer, all initial syndications of tenant-in-common interests, provided such syndications are specifically permitted by and in accordance with the related loan documents for any Mortgage Loan (other than a Non-Serviced Loan) or Serviced Whole Loan, that is not a Specially Serviced Mortgage Loan, including without limitation, any such Loan set forth on Schedule XIII attached hereto. Upon completion of any such initial transfer, the Master Servicer shall promptly provide notice by electronic mail thereof to the Special Servicer and the Directing Certificateholder, which notice shall also (i) advise the Special Servicer and Directing Certificateholder as to the total number of transfers with respect to such Mortgage Loan or Serviced Whole Loan that the Master Servicer has approved and closed as of such date and the expiration date (if any) by which such transfer(s) must occur pursuant to the related loan documents, and (ii) advise the Special Servicer and the Directing Certificateholder of when, with respect to any such Mortgage Loan or Serviced Whole Loan, such tenant-in-common syndication is complete. Any requests for modification to or extension of the final initial syndication date respecting any such tenant-in-common transfers or increase in the permitted number of tenant-in-common interests under the initial syndication shall be processed and approved solely by the Special Servicer, who shall promptly notify the Directing Certificateholder of any such modification or extension.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-2)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable The Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or and the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation ), on behalf of the relevant Trustee as the mortgagee of record, shall enforce any "due-on-sale clause sale" or "due-on-encumbrance clause or (ii) if encumbrance" clauses and any other restrictions contained in the best economic interest related Mortgage Loan Documents on transfers or further encumbrances of the Trust andrelated Mortgaged Property and on transfers of interests in the related Borrower, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve unless the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into or the Special Servicer, as the case may be, has (i) determined, in its reasonable judgment, that waiver of such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent restrictions would be in accordance with the Servicing Standard and (ii) complied with the applicable requirements, if any, of Section 3.20(a) and Section 3.24; provided that, subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of Mortgage Loan Documents and applicable law, neither the applicable Special Servicer’s receipt from the applicable Master Servicer of nor the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to the applicable Master Servicer withhold, in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a accordance with any related "due-on-sale provision is involved encumbrance" clause under any Serviced Mortgage Loan, until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates; and provided, further, that, if the affected Serviced Mortgage Loan is a Mortgage Loan that (Loan, individually or together with all other Serviced Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten 10 largest Mortgage Loans then in the Trust, trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved__________, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a "due-on-encumbrance provision sale" clause under any Serviced Mortgage Loan until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates; and provided, further, that, subject to the related Mortgage Loan Documents and applicable law, the Master Servicer shall not waive any right it has, or grant any consent it is involvedotherwise entitled to withhold, thenin accordance with any related "due-on-sale" or "due-on-encumbrance" clause under any Serviced Mortgage Loan, or approve the assumption of any Serviced Mortgage Loan, until it has delivered to the Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 3.24), which consent shall be deemed given if not denied in writing within ten Business Days of receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information requested by the Special Servicer or the Controlling Class Representative; and provided, further, that, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a "due-on-sale provision is involvedsale" or "due-on-encumbrance" clause under any Serviced Mortgage Loan, thenor approve the assumption of any Serviced Mortgage Loan, subject unless in any such case, all associated costs and expenses are covered without any expense to the related Mortgage Loan Documents Trust (it being understood and applicable lawagreed that, except as expressly provided herein, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses); and provided, further, that neither the Master Servicer nor the Special Servicer shall (with respect to a Specially Serviced Mortgage Loanthe extent that it is within the control thereof to prohibit such event) shall enter into such approval or waiver with respect consent to the transfer of any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) Borrower or (ii) either (x) in the case of the applicable Master Servicer, it has obtained obtains the consent of the applicable Special Servicer (pursuant to Controlling Class Representative, which consent shall be deemed given if not denied in writing within ten Business Days of receipt by the approval procedures described in clause (A) above) or (y) in Controlling Class Representative of written notice of such action and all reasonably requested information related thereto. In the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including , the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor and the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of each provide the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee with all such information as each may reasonably request in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause perform its duties under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) section. In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), . If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in a Borrower or a Mortgaged Property, then the Master Servicer or the Special Servicer, as applicable, will apply that fee to cover the costs and expenses associated with that transfer or proposed transfer that are not otherwise paid by the related Borrower and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses to the extent such fees and expenses are collectible under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, applicable law and the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting Servicer, as appropriate, fails to enforce such requirement in accordance with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents Documents. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the Master Servicer or the Special Servicer in accordance with Section 3.11. Neither the Master Servicer nor the Special Servicer shall waive any assumption fee or assumption application fee, to the extent it would constitute additional compensation for the other such party, without the exercise consent of any lender approval or discretion such other than confirming the satisfaction of the other conditions party. If and to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided extent that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Mortgage Loan, approval of the lender is required in connection with the related Borrower's incurring unsecured debt in addition to (A) trade receivables, (B) equipment financing and (C) other debt incurred in the ordinary course of business, then the Master Servicer (if the subject Mortgage Loan is a Performing Serviced Mortgage Loan) or the Special Servicer (if the subject Mortgage Loan that is part a Specially Serviced Mortgage Loan), as applicable, shall refuse to approve such unsecured debt unless and until it has obtained (i) in the case of a the Master Servicer, the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 3.24), which consent shall be deemed given if not denied in writing within 10 Business Days of receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information requested by the Special Servicer, and (ii) in each such case, if the subject Mortgage Loan Combinationhas an unpaid principal balance in excess of $__________, an analogous rating agency written confirmation from each Pari Passu Companion Rating AgencyAgency to the effect that the related Borrower's incurring such unsecured debt will not result in an Adverse Rating Event with respect to any Class of Rated Certificates; provided that neither the Master Servicer nor the Special Servicer shall be obligated to obtain any such ratings confirmation if, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan DocumentsDocuments and/or applicable law, which provisions shall it would not be waived by able either (i) to withhold its consent based upon the applicable Master Servicer, and, if not paid, failure of either Rating Agency to provide such costs shall be paid by and reimbursed ratings confirmation or (ii) to obtain payment from the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with related Borrower of the cost of obtaining such transfers of interest as Additional Master Servicing Compensationratings confirmation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Securities Inc)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion that is a Pooled Mortgage Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbranceassumption, (y) the applicable Master Servicer’s written 's recommendations and analysis, and (z) with all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) except with respect to any Nationwide Pooled Mortgage Loan, if any such consent has not been expressly denied within fifteen (15) seven Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s 's receipt from the applicable Master Servicer of the applicable such Master Servicer’s written 's recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted, and (4) solely with respect to any Nationwide Pooled Mortgage Loan, any such consent shall be deemed to have been granted if such consent has not been expressly denied either (x) within ten Business Days of the Special Servicer's receipt of the applicable Master Servicer's recommendations and analysis, if the Special Servicer has not requested additional information as described above on or before the date that is four Business Days following the Special Servicer's initial receipt of the applicable Master Servicer's recommendations and analysis, or (y) within six Business Days following the Special Servicer's receipt of the additional information requested by the Special Servicer as described above, if the Special Servicer has requested such additional information on or before the date that is four Business Days following the Special Servicer's initial receipt of the applicable Master Servicer's recommendations and analysis);
(B1) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Pooled Mortgage Loan that (together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan) is one of the ten largest Pooled Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Pooled Mortgage Loan and, if applicable, any related Performing other than a Specially Serviced Pari Passu Companion Pooled Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates and (2) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is the Marquis Apartments Non-Pooled Mortgage Loan, the Plaza La Cienega Non-Pooled Mortgage Loan or the Garden State Pavilion Non-Pooled Mortgage Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the Special Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) unless and in the case of a Serviced Loan Combination, the equivalent until it has received written confirmation from each Pari Passu Companion applicable Rating Agency for the Marquis Apartments Non-Pooled Mortgage Loan Securities, the Plaza La Cienega Non-Pooled Mortgage Loan Securities or the Garden State Pavilion Non-Pooled Mortgage Loan Securities, as applicable, that such action would not result in an Adverse Rating Event with respect to the related Serviced Pari Passu Companion any class of Marquis Apartments Non-Pooled Mortgage Loan Securities; and, any class of Plaza La Cienega Non-Pooled Mortgage Loan Securities or any class of Garden State Pavilion Non-Pooled Mortgage Loan Securities, as applicable, rated by such Rating Agency;
(C1) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation that such approval or waiver is the subject action would not result in an Adverse Rating Event with respect to any Class of a Rated Certificates from each Rating Agency Confirmation (subject Agency, with respect to Section 3.27) if the related any Serviced Pooled Mortgage Loan that (a) represents 2% or more of the then-then aggregate principal balance of all of the Pooled Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Pooled Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x1.2x and (2) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved and the affected Serviced Mortgage Loan is the Marquis Apartments Non-Pooled Mortgage Loan, the Plaza La Cienega Non-Pooled Mortgage Loan or the Garden State Pavilion Non-Pooled Mortgage Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the Special Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each applicable Rating Agency for the Marquis Apartments Non-Pooled Mortgage Loan Securities, the Plaza La Cienega Non-Pooled Mortgage Loan Securities or the Garden State Pavilion Non-Pooled Mortgage Loan Securities, as applicable, that such action would not result in an Adverse Rating Event with respect to any class of Marquis Apartments Non-Pooled Mortgage Loan Securities, any class of Plaza La Cienega Non-Pooled Mortgage Loan Securities or any class of Garden State Pavilion Non-Pooled Mortgage Loan Securities, as applicable, rated by such Rating Agency;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable a Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Controlling Class Representative, Representative if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable3.24);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any confirmation(s) of the absence of an Adverse Rating Agency ConfirmationEvent) are covered without any expense to the Trust or (in the case of a Serviced Mortgage Loan CombinationGroup) any expense to any related Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an any Adverse Grantor Trust Event with respect to the either Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable a Master Servicer’s 's recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable3.24. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s 's approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer if (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretionexercise). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the The applicable Master Servicer shall have the right to grant its consent to any transfers of an interest in the same without Borrower under a Performing Serviced Mortgage Loan, to the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if extent such transfer is allowed under the terms of the related Mortgage Loan Documents (without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion), including a any consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Pooled Mortgage Loan that, together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan, has a Stated Principal Balance that equals or exceeds 5% of the then aggregate Stated Principal Balance of the Mortgage Pool or is one of the then-then current top ten Pooled Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, Pool or has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)%, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a it has received written confirmation from each Rating Agency Confirmation that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense); provided, further, however, that, subject to Section 3.27the terms of the related Mortgage Loan Documents and applicable law, if (i) (and, in the case of any applicable affected Serviced Mortgage Loan that Group is part the Marquis Apartments Loan Group, the Plaza La Cienega Loan Group or the Garden State Pavilion Loan Group, and (ii) the transfer is of a Loan Combinationan interest in the Borrower greater than 49%, an analogous rating agency then the applicable Master Servicer shall not consent to such transfer unless and until it has received written confirmation from each Pari Passu Companion Rating AgencyAgency for the Rated Certificates that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates rated by such Rating Agency and also a written confirmation from each applicable Rating Agency for the Marquis Apartments Non-Pooled Mortgage Loan Securities, if applicable pursuant the Plaza La Cienega Non-Pooled Mortgage Loan Securities or Garden State Pavilion Non-Pooled Mortgage Loan Securities, as applicable, that such action would not result in an Adverse Rating Event with respect to Section 3.27(k)) any class of Marquis Apartments Non-Pooled Mortgage Loan Securities, any class of Plaza La Cienega Non-Pooled Mortgage Loan Securities or any class of Garden State Pavilion Non-Pooled Mortgage Loan Securities, as applicable, rated by such Rating Agency (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced With respect to all Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, Loans other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c)Loans, the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers of interests in the related Mortgagor, unless the Master Servicer (with the written consent of the Special Servicer) or the Special Servicer, as applicable, has determined, consistent with the Servicing Standard, that waiver of such restrictions would be in accordance with the Servicing Standard. Promptly after the Master Servicer (with the written consent of the Special Servicer) or the Special Servicer, as applicable, has made any such determination, the Master Servicer or the Special Servicer shall prepare all documents necessary deliver to the Trustee, the Rating Agencies and appropriate each other an Officers' Certificate setting forth the basis for such purposes determination. The Master Servicer or the Special Servicer shall not exercise (and the Special Servicer shall coordinate not consent to) any such waiver in respect of a due-on-encumbrance provision of any Mortgage Loan without receiving the prior written confirmation from the Rating Agencies that such action would not result in a downgrading, qualification or withdrawal of the ratings then assigned to the Certificates. The Master Servicer or the Special Servicer shall not exercise (and the Special Servicer shall not consent to) any such waiver in respect of a due-on-sale provision of any Mortgage Loan for which the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the related Borrower Mortgagor on such Mortgage Loan, are equal to or greater than 5% of the aggregate Stated Principal Balance of all Mortgage Loans or $20,000,000 without receiving the prior written confirmation from the Rating Agencies that such action would not result in a downgrading, qualification or withdrawal of any of the ratings then assigned to the Certificates. In the event that such Mortgage Loan does not meet the criteria set forth in the prior sentence, and the Mortgage Loan documents contain a requirement for Rating Agency approval, the due execution and delivery of Master Servicer or the Special Servicer may waive such documentsrequirement without Rating Agency approval in accordance with the Servicing Standards.
(cb) Notwithstanding any other provisions of this Section 3.08(a)3.08, the Master Servicer (without the Special Servicer's consent) or the Special Servicer, as applicable, may grant, without any Rating Agency confirmation as provided in connection with any transfer of an interest in paragraph (a) above, a Mortgagor's request for consent to subject the related Borrower under a Performing Serviced Mortgage Loan Mortgaged Property to an easement or related Serviced Pari Passu Companion Loanright-of-way for utilities, the applicable Master Servicer shall have the right to grant its access, parking, public improvements or another purpose, and may consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms subordination of the related Mortgage Loan Documents without to such easement or right-of-way provided the exercise of any lender approval Master Servicer or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Special Servicer, as applicable, shall have determined in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated accordance with the Borrower under Servicing Standards that such Mortgage Loan, is one of easement or right-of-way shall not materially interfere with the then-current top ten Mortgage Loans (use of the related Mortgaged Property, or the security intended to be provided by Stated Principal Balance) in such Mortgage, the related Mortgagor's ability to repay the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000Loan, or has a Stated Principal Balance that equals materially or exceeds 5% adversely affect the value of the then-aggregate Stated Principal Balance of such Mortgaged property or cause the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are cease to be payable by the related Borrower to the extent provided a qualified mortgage loan for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationREMIC purposes.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage As to each Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests that contains a provision in the related Borrower, in each case nature of a (i) "due-on-sale" clause that by its terms (1) provides that such Loan shall (or may at the mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause Mortgagor; or (ii2) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion provides that such Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall may not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer mortgagee in connection with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consentsale or other transfer, (2) the applicable Special Servicer shall decide whether to withhold or grant for so long as such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then included in the Trust Fund, or (bii) is one of the ten largest Mortgage Loans then as to each Loan that contains a provision in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver nature of a "due-on-sale provision is involved, then, subject to encumbrance" clause that by its terms:
(1) provides that such Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) Property; or (ii2) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order mortgagee to incur subordinate debtthe creation of any such additional lien or other encumbrance on the related Mortgaged Property, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Loan (x) to accelerate the payments thereon, or (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject . Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause, unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Loans in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without first obtaining the consent of the Special Servicer. The Special Servicer's consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the last sentence of the first paragraph of clause (ii) below and the Special Servicer shall not have responded in writing, via fax or e mail within ten Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties).
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Directing Certificateholder for (a) any Non-Partitioned Loan and/or a Post CAP Loan that is a Performing Loan and has a then Stated Principal Balance of $2,500,000 or greater or (b) for any Specially Serviced Loan that is a Non-Partitioned Loan and/or a Post CAP Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e mail within ten Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) With respect to the FM Component Mortgage Loan, the SM Component Mortgage Loan or the LM Component Mortgage Loan for which a FM Control Appraisal Period, a SM Control Appraisal Period or a LM Control Appraisal Period, as the case may be, does not exist, (A) the Master Servicer with respect to those time periods when such Loan is a Performing Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Special Servicer, which consent shall not be given without the Special Servicer first obtaining the consent of the FM Controlling Holder, the SM Controlling Holder or the LM Controlling Holder, as applicable, and (B) the Special Servicer with respect to those time periods when either such Loan is a Specially Serviced Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the FM Controlling Holder, the SM Controlling Holder or the LM Controlling Holder, as applicable, in the case of the FM Component Mortgage Loan, the SM Component Mortgage Loan or the LM Component Mortgage Loan, as applicable. Consent by the FM Controlling Holder, the SM Controlling Holder or the LM Controlling Holder, as applicable, shall be deemed given if the Master Servicer or Special Servicer, as applicable, shall have provided the FM Controlling Holder, the SM Controlling Holder or the LM Controlling Holder, as applicable, written notice of the matter together with all of the information set forth in the last sentence of the first paragraph of clause (ii) above and the FM Controlling Holder, the SM Controlling Holder or the LM Controlling Holder, as applicable, shall not have responded in writing, via fax or email within ten Business Days of such request.
(iv) [Reserved].
(v) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a), if any Mortgage Loan with an outstanding principal balance of greater than $5,000,000:
(1) represents greater than 5% of the then outstanding principal balance of the Mortgage Pool;
(2) has an outstanding principal balance of greater than $20,000,000; or
(3) is one of the ten largest Mortgage Loans in the Trust Fund based on outstanding principal balance, then neither the Master Servicer nor Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vi) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-encumbrance" clause as described in Section 3.08(a), if any Mortgage Loan:
(1) represents greater than 2% of the then outstanding principal balance of the Mortgage Pool, or
(2) is at the time one of the ten largest Mortgage Loans (by outstanding principal balance) in the Mortgage Pool or has an outstanding principal balance of greater than $20,000,000, or
(3) after taking into consideration any additional indebtedness secured by the related Mortgaged Property, the loan-to-value ratio for such Mortgage Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor the Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-encumbrance" clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Group unless the Master Servicer or Special Servicer, as applicable, shall have obtained written confirmation from each Rating Agency that such action shall not result in a qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vii) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the Loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2005-1)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender provided that certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall immediately notify the Special Servicer of such request, perform an underwriting analysis in connection therewith and deliver to the Special Servicer such underwriting analysis and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder to, in accordance with the Servicing Standard, withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11, Section 6.12 and/or Section 6.13, in each case if and as applicable. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Serviced Mortgage Loan and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without lender consent provided certain conditions are satisfied, that such conditions have not been satisfied, then in either case the Master Servicer shall not permit the requested transfer or assumption of such Performing Serviced Mortgage Loan. If the Special Servicer consents to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits and substitute as obligor thereunder the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage Loan DocumentsMortgage. The Master Servicer shall notify the Trustee, the applicable Master Servicer (with respect to Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan andNoteholder(s), if applicableof any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Trust Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Performing Serviced Pari Passu Companion LoanMortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender provided that certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall immediately notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11, Section 6.12 and/or Section 6.13, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Serviced Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected no assumption of a Serviced Mortgage Loan is or relates to a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C6)
Enforcement of Alienation Clauses. (a) If the provisions of any The Master Servicers (with respect to Mortgage Loans that are not Specially Serviced Mortgage Loan Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record, shall enforce any "due-on-sale" or Serviced Loan Combination expressly permits "due-on-encumbrance" clauses and any other restrictions contained in the assignment related Mortgage or other related loan document on transfers or further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable unless either Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain Servicer, as the relevant information and review and make a determination to either case may be, has (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance determined, in its reasonable judgment (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent exercised in accordance with the Servicing Standard (and subject which, for the avoidance of doubt, would include a determination that any required conditions to Section 3.24a transfer have been met), and/or Section 3.26 if and that waiver of the lender's rights under such clauses or the waiver of such other restrictions, as applicable), would be in accordance with the Servicing Standard and (3ii) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of complied with the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loansrequirements, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities6.11; andprovided that:
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents documents and applicable law, neither of the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) Servicers nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” " clause under any Trust Mortgage Loan that is a Significant Mortgage Loan, pursuant or if, taking into account existing debt on the subject Mortgaged Property (including any related Non-Trust Loan(s)) and the proposed additional debt as if such total debt were a single mortgage loan, the Loan-to-Value Ratio is equal to this paragraphor greater than 85% or the Debt Service Coverage Ratio is equal to or less than 1.2x, unless it receives prior written confirmation from each Rating Agency that such action would not result in any such casean Adverse Rating Event (except that prior written confirmation from Xxxxx'x shall not be required unless the Trust Mortgage Loan is a Significant Mortgage Loan);
(ii) if the affected Trust Mortgage Loan is a Significant Mortgage Loan, all associated costs and expenses are covered without any expense then, subject to the Trust.
(b) In connection related Mortgage Loan documents and applicable law, neither the Master Servicers nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “related "due-on-sale” " clause under any Trust Mortgage Loan until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event; provided that, with respect to a waiver of a due-on-sale provision, in the event that such Mortgage Loan is not a Significant Mortgage Loan, and the Mortgage Loan documents contain a requirement for Rating Agency approval, either Master Servicer or “the Special Servicer, subject to Section 6.11 may waive such requirement without Rating Agency approval in accordance with the Servicing Standard;
(iii) subject to the related Mortgage Loan documents and applicable law, neither Master Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced under any Trust Mortgage Loan) or the applicable Special Servicer (in the case of Loan that is not a Specially Serviced Mortgage Loan) Loan until it has delivered to the Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the Special Servicer (the giving of which consent shall prepare all documents necessary be subject to the Servicing Standard and appropriate for such purposes and Section 6.11, which consent shall coordinate with be deemed given if not denied in writing within 10 Business Days (or, if the related Borrower for Controlling Class Representative is entitled to object pursuant to Section 6.11, 15 Business Days, (which 15 Business Days shall include the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest five Business Days specified in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, proviso at the end of the first paragraph of Section 6.11) after receipt by the Special Servicer of the applicable Master Servicer shall have Servicer's written recommendation and analysis and any additional information reasonably requested by the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Controlling Class Representative in connection with such applicable Master Servicer consentRepresentative);
(iv) if such transfer is allowed under the terms of subject to the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable neither Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (andwithhold, in the case of accordance with any applicable Serviced related "due-on-sale" clause under any Trust Mortgage Loan that is part not a Specially Serviced Mortgage Loan until it has received the consent of a Loan Combinationthe Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 6.11, an analogous rating agency confirmation from each Pari Passu Companion Rating Agencywhich consent shall be deemed given if not denied in writing within 10 Business Days (or, if applicable the Controlling Class Representative is entitled to object pursuant to Section 3.27(k)6.11, 15 Business Days, (which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) (the costs of which are to be payable receipt by the related Borrower to Special Servicer of the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.applicable
Appears in 1 contract
Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-2)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall immediately notify the Special Servicer of such request, perform an underwriting analysis in connection therewith and deliver to the Special Servicer such underwriting analysis and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder to, in accordance with the Servicing Standard, withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Serviced Mortgage Loan and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then in either case the Master Servicer shall not permit the requested transfer or assumption of such Performing Serviced Mortgage Loan. If the Special Servicer consents to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits and substitute as obligor thereunder the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage Loan DocumentsMortgage. The Master Servicer shall notify the Trustee, the applicable Master Servicer (with respect to Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan andNoteholder, if applicableof any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Trust Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Performing Serviced Pari Passu Companion LoanMortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall immediately notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder, of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Serviced Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected no assumption of a Serviced Mortgage Loan is or relates to a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C7)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Mortgage Loan other than a Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an such assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of or enforce the relevant due-on-sale clause or due-on-encumbrance clause if the Mortgaged Property is transferred in violation of the Mortgage Loan Documents or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) the RREEF Textron B-Note Holder (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such approve a waiver request for approval of an assignment and assumption or approval waive the effect of a due-on-sale clause for any Performing Serviced Pooled Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbranceassumption, (y) the applicable Master Servicer’s written 's recommendations and analysis, and (z) with all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2B) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and 3.27 or Section 3.28, as applicable), ) and (3C) if any such consent has not been expressly denied within fifteen (15) 7 Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s 's receipt from the applicable Master Servicer of the applicable such Master Servicer’s written 's recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted);
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten 10 largest Mortgage Loans (by Stated Principal Balance) then in the Mortgage Pool, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% then, subject to the related Mortgage Loan Documents and applicable law, and except in the case of the thenRREEF Textron Pooled Mortgage Loan, neither the applicable Master Servicer (with respect to a Mortgage Loan other than a Specially Serviced Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall approve any Borrower request for approval of an assignment and assumption or waive the effect of any "due-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved on-sale" clause unless and the related Other Pooling and Servicing Agreement would require until it has received written confirmation from each Rating Agency Confirmation if that such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise action would not result in a change in control of the Borrower (for these purposes, “control” when used an Adverse Rating Event with respect to any specified person means the power to direct the management and policies Class of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative Rated Certificates;
(C) subject to the foregoing)related Mortgage Loan Documents and applicable law, then neither the applicable Master Servicer (with respect to a Mortgage Loan other than a Specially Serviced Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall approve any Borrower request for approval of an assignment and assumption or waive the effect of any "due-on-sale" clause with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of a Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Controlling Class Representative if and to the extent required under Section 3.24);
(D) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Mortgage Loan other than a Specially Serviced Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall approve any Borrower request for approval of an assignment and assumption or waive the effect of any "due-on-sale" clause with respect to any Mortgage Loan unless all associated costs and expenses (including the costs of any confirmation(s) of the absence of an Adverse Rating Event) are covered without any expense to the Trust or (in the case of the RREEF Textron Mortgage Loan Pair) any expense to the RREEF Textron B-Note Holder (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses);
(E) neither the applicable Master Servicer (with respect to a Mortgage Loan other than a Specially Serviced Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any approval of any Borrower request for approval of an assignment and assumption or waiver of the effect of any "due-on-sale" clause with respect to any Mortgage Loan, consent or agree to any modification, waiver or amendment of any term or provision of such Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or any Adverse Grantor Trust Event with respect to either Grantor Trust Pool; and
(F) the applicable Special Servicer shall not consent to such transfer unless a Master Servicer's recommendation described in clause (A) above, or itself approve a request for approval of an assignment and until such transfer is assumption or waive the subject effect of a Rating Agency Confirmation (subject to due-on-sale clause, unless the applicable Special Servicer has complied with Section 3.27) (and3.24. Notwithstanding the foregoing, in no event will the case applicable Master Servicer's approval of an assignment and assumption be conditioned on the approval or absence of objection from the applicable Special Servicer if (a) the assignment and assumption is permitted under the Mortgage Loan Documents and (b) the conditions to the assignment and assumption that are set forth in the Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the assignment and assumption set forth in the Mortgage Loan Documents that do not include any other approval or exercise). If the provisions of any applicable Serviced Mortgage Loan that is part expressly permits the further encumbrance of the Mortgaged Property upon the satisfaction of specified conditions, prohibits such a Loan Combinationfurther encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by and the related Borrower to requests approval for such a further encumbrance or enters into a further encumbrance in violation of the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.the
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Sec Tr 2002-Pbw1)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion that is a Pooled Mortgage Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer (and, if a Serviced Mortgage Loan Group is involved, to the related Serviced Mortgage Loan Group Controlling Party) with (x) written notice of any Borrower request for such assignment and assumption or such encumbranceassumption, (y) the applicable Master Servicer’s written 's recommendations and analysis, and (z) with all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, 3.27, 3.28 and/or Section 3.26 3.29, if and as applicable), and (3) except with respect to any Nationwide Pooled Mortgage Loan or PCF Pooled Mortgage Loan, if any such consent has not been expressly denied within fifteen (15) seven Business Days (or at least five (5) Business Days after the time period provided for or. in the related Intercreditor Agreementcase of the Lock Up Storage Centers Loan Group, such longer period of time, if any, that is provided in Section 3.27(a)) of the applicable Special Servicer’s 's receipt from the applicable Master Servicer of the applicable such Master Servicer’s written 's recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
, and (B4) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver solely with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing PCF Pooled Mortgage Loan or any Nationwide Pooled Mortgage Loan, any such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) consent shall be deemed to have been granted if such consent has not been expressly denied either (x) in within ten Business Days of the case applicable Special Servicer's receipt of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative's recommendations and analysis, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, not requested additional information as applicable. Notwithstanding described above on or before the foregoing, in no event will date that is four Business Days following the applicable Special Servicer's initial receipt of the applicable Master Servicer’s approval 's recommendations and analysis, or (y) within six Business Days following the applicable Special Servicer's receipt of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from additional information requested by the applicable Special Servicer (or as described above, if the applicable Special Servicer interacting with has requested such additional information on or before the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction date that is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or four Business Days following the applicable Special Servicer (in the case Servicer's initial receipt of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by 's recommendations and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expenseanalysis). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr8)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage As to each Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests that contains a provision in the related Borrowernature of a (i) "due-on-sale" clause, in each case which by its terms (1) provides that such Loan shall (or may at the mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause Mortgagor; or (ii2) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion provides that such Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall may not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer mortgagee in connection with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consentsale or other transfer, (2) the applicable Special Servicer shall decide whether to withhold or grant for so long as such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then included in the Trust Fund, or (bii) is one of the ten largest Mortgage Loans then as to each Loan that contains a provision in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver nature of a "due-on-sale provision is involvedencumbrance" clause, then, subject to that by its terms: (1) provides that such Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) Property; or (ii2) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order mortgagee to incur subordinate debtthe creation of any such additional lien or other encumbrance on the related Mortgaged Property, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Loan (x) to accelerate the payments thereon, or (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject . Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause, unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Loans in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without first obtaining the consent of the Special Servicer. The Special Servicer's consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the last sentence of the first paragraph of clause (ii) below and the Special Servicer shall not have responded in writing, via fax or e-mail within ten Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties).
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Directing Certificateholder for any Performing Loan that is a Non-Partitioned Loan and/or a Post CAP Loan or (b) for any Specially Serviced Loan that is a Non-Partitioned Loan and/or a Post CAP Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e-mail within ten Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) With respect to the CC Component Mortgage Loan, the SS Component Mortgage Loan or the UH Component Mortgage Loan for which a CC Control Appraisal Period, an SS Control Appraisal Period or a UH Control Appraisal Period, as the case may be, does not exist, (A) the Master Servicer with respect to those time periods when such Loan is a Performing Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Special Servicer, which consent shall not be given without the Special Servicer first obtaining the consent of the CC Controlling Holder, SS Controlling Holder or UH Controlling Holder, as applicable, and (B) the Special Servicer with respect to those time periods when either such Loan is a Specially Serviced Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the CC Controlling Holder, SS Controlling Holder or UH Controlling Holder, as applicable, in the case of the CC Component Mortgage Loan, the SS Component Mortgage Loan or the UH Component Mortgage Loan, as applicable. Consent by the CC Controlling Holder, SS Controlling Holder or UH Controlling Holder, as applicable, shall be deemed given if the Master Servicer or Special Servicer, as applicable, shall have provided the CC Controlling Holder, SS Controlling Holder or UH Controlling Holder, as applicable, written notice of the matter together with all of the information set forth in the last sentence of the first paragraph of clause (ii) above and the CC Controlling Holder, SS Controlling Holder or UH Controlling Holder, as applicable, shall not have responded in writing, via fax or e-mail within ten Business Days of such request.
(iv) [Reserved].
(v) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a) hereof, if any Mortgage Loan:
(1) represents greater than 5% of the then outstanding principal balance of the Mortgage Pool;
(2) has an outstanding principal balance of greater than $20,000,000; or
(3) is one of the ten largest Mortgage Loans in the Trust Fund based on outstanding principal balance, then neither the Master Servicer nor Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vi) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-encumbrance" clause as described in Section 3.08(a) hereof, if any Loan:
(1) represents greater than 2% of the then outstanding principal balance of the Mortgage Pool, or
(2) is at the time one of the ten largest loans (by outstanding principal balance) in the Mortgage Pool, and
(3) after taking into consideration any additional indebtedness secured by the related Mortgaged Property, the loan-to-value ratio for such Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor the Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-encumbrance" clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Group unless the Master Servicer or Special Servicer, as applicable, shall have obtained written confirmation from each Rating Agency that such action shall not result in a qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vii) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the Loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mort. Pass Thr. Certs SER 2004-3)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Junior Interest Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer (and, if a Partitioned Mortgage Loan is involved, to the related Controlling Junior Interest Holder) with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24Sections 3.24 and/or 3.26, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten [ten] largest Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $[20,000,000, or if a Serviced Loan Combination is involved], then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Mortgage Loan other than a Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities); and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced ), with respect to any Mortgage Loan that is or relates to a Mortgage Loan that (a) represents 2% [2]% or more of the then-then aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% [85]% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x[1.2]x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class RepresentativeRepresentative and/or the related Controlling Junior Interest Holder, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan CombinationPartitioned Mortgage Loan) any expense to any related Serviced Pari Passu Companion Loan Junior Interest Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the any Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section Sections 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative or any Controlling Junior Interest Holder in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable The Master Servicer shall have the right to grant its consent to the same consent, without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative or any Controlling Junior Interest Holder in connection with such applicable Master Servicer consent) if to any transfers of an interest in the Borrower under a Performing Mortgage Loan, to the extent such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-then current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $[20,000,000], or has a Stated Principal Balance that equals or exceeds 5% [5]% of the then-then aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)[49]%, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced As to each Mortgage Loan that contains a provision in the nature of a (i) “due-on-sale” clause (which includes, without limitation, sales or Serviced Loan Combination expressly permits the assignment transfers of the related Mortgaged Property to(in full or in part) or the sale, and assumption transfer, pledge or hypothecation of direct or indirect interest in the related Borrower or its owners), which by its terms (1) provides that such Mortgage Loan by, another Person, shall (or may at the transfers of interests in the related Borrower, in each case mortgagee’s option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgagor; or (2) provides that such Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer mortgagee or satisfaction of certain conditions in connection with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consentsale or other transfer, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group so long as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then included in the Trust Fund, or (bii) is one of the ten largest as to each Mortgage Loans then Loan that contains a provision in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver nature of a “due-on-sale provision is involvedencumbrance” clause (including, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicablewithout limitation, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all mezzanine financing of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
Mortgaged Property or any sale or transfer of preferred equity in such Borrower or its direct or indirect owners), that by its terms: (F1) neither the applicable Master Servicer (with respect to a Performing Serviced provides that such Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loanshall (or may at the mortgagee’s option) nor become due and payable upon the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment creation of any term additional lien or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further other encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan related Mortgaged Property; or (y)(a2) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order mortgagee or satisfaction of certain conditions to incur subordinate debtthe creation of any such additional lien or other encumbrance on the related Mortgaged Property, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Mortgage Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject . Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related “due-on-sale” or “due-on-encumbrance” clause, unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Mortgage Loans in the manner set forth in the immediately below clauses (i) through (vii):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related “due-on-sale” or “due-on-encumbrance” clause without first obtaining the consent of the Special Servicer. The Special Servicer’s consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the last sentence of the first paragraph of clause (ii) below and the Special Servicer shall not have responded in writing, via fax or e-mail within [ten] Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties).
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related “due-on-sale” or “due-on-encumbrance” clause without obtaining the consent of the Directing Certificateholder for any Mortgage Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e-mail within [ten] Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) Notwithstanding anything to the contrary contained herein, if the Special Servicer, in accordance with the Servicing Standard, (a) notifies the Master Servicer of its determination with respect to any Mortgage Loan (which by its terms permits transfer, assumption or further encumbrance without mortgagee consent provided certain conditions are satisfied) that the conditions required under the related loan documents have not been satisfied or (b) the Special Servicer objects in writing to the Master Servicer’s determination that such conditions have been satisfied, then the Master Servicer shall not permit transfer, assumption or further encumbrance of such Mortgage Loan.
(iv) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to which the original Mortgagor and any original guarantors are released from liability, and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any related costs and expenses incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any such agreement and forward the original thereof to the Trustee for inclusion in the related Mortgage File.
(v) [Notwithstanding the foregoing, solely with respect to the consent or waiver of any “due-on-encumbrance” clause as described in Section 3.08(a), if any Mortgage Loan:
(1) represents greater than [___]% of the then outstanding principal balance of the Mortgage Pool;
(2) is at the time one of the ten largest Mortgage Loans or Cross-Collateralized Set of Mortgage Loans by outstanding principal balance in the Mortgage Pool;
(3) has a then outstanding principal balance of greater than $[_________]; or
(4) after taking into consideration any additional indebtedness secured by the related Mortgage Property and any mezzanine debt, the loan to value ratio for such Mortgage Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related “due-on-encumbrance” clause under governing the transfer of any Mortgage LoanMortgaged Property that secures, pursuant to this paragraph, unless or controlling interests in any such caseMortgagor under, all associated costs and expenses are covered without any expense to a Cross-Collateralized Set unless the TrustMaster Servicer or Special Servicer, as applicable, shall have obtained Rating Agency Confirmation from each Rating Agency.]
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a “Net Assumption Fee”) or of such assumption application fee (such remaining portion, a “Net Assumption Application Fee”) will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Merrill Lynch Commercial Mortgage Inc.)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall promptly notify the Special Servicer of such request, shall evaluate (consistent with the Servicing Standard) the experience and financial condition of the proposed transferee and the status of any conditions to transfer or assumption (as described above) and prepare a report in connection therewith and shall deliver to the Special Servicer such report and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder, within 15 days (or, in the case of a consent to a determination as to whether the conditions precedent to the subject transfer or assumption have been satisfied, within 10 days, or within such longer period as may be necessary to obtain any required consent pursuant to Section 3.27 or 6.11, as and if applicable) of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, in accordance with the Servicing Standard, to withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 3.27 and/or Section 6.11, in each case if and as applicable. If the Special Servicer does not respond within such 15-day period, 10-day period or such longer period as set forth above (and set forth in the notice described in the following proviso), as the case may be, such party's consent shall be deemed granted; provided that if the Special Servicer's consent is not withheld, granted or deemed granted within the aforementioned 15-day period or 10-day period, as applicable, because the Special Servicer is in the process of obtaining a consent required pursuant to Section 3.27 and/or Section 6.11, as applicable, then the Special Servicer shall, prior to the termination of the aforementioned 15-day or 10-day period, provide notice to the Master Servicer of such process and the estimated time period for completion thereof. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Serviced Mortgage Loan and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer and/or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then, in each such case, the Special Servicer shall notify the Master Servicer in writing of such determination, and the Master Servicer shall notify the related Mortgagor that the requested transfer and/or assumption will not be permitted and shall restrict the requested transfer and/or assumption of the subject Performing Serviced Mortgage Loan in accordance with the Servicing Standard. If the Special Servicer consents or is deemed to consent to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits and substitute as obligor thereunder the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage Loan DocumentsMortgage. The Master Servicer shall notify the Trustee, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan Special Servicer, each Rating Agency, the Controlling Class Representative and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Trust Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Mortgagor. With respect to any Serviced Mortgage Loans as to which the related Mortgagors constitute tenants-in-common, the Master Servicer, on behalf of the Trustee, shall review (A) each request for approval thereof) and not waive a sale, transfer or syndication of any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if Mortgagor's equity interests in the best economic interest related Mortgagor and shall promptly analyze such request, including, with regard to each proposed Mortgagor transferee, the financial statements, credit information, organizational documents and other written materials required to be provided pursuant to the related loan documents or reasonably requested by the Master Servicer, to determine, in accordance with the Servicing Standard, whether the requested sale, transfer or syndication meets the applicable requirements set forth in the related loan documents and to obtain any consents required under any related intercreditor agreement, and (B) the corresponding waiver of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the applicable due-on-sale or due-on-encumbrance clause; provided provisions set forth in the related loan documents in order to determine whether approval of such waiver is consistent with the Servicing Standard. Promptly after the Master Servicer has made any such affirmative determination that all of such sale, transfer or syndication meets the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c)applicable requirements set forth in the related loan documents and complies with the Servicing Standard, the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available deliver to the applicable Master Servicer that Special Servicer, the applicable Special Servicer may reasonably request in order to withhold or grant any such consentTrustee, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with Rating Agencies, the Servicing Standard (Controlling Class Representative and subject to Section 3.24each other party hereto, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least no later than five (5) Business Days after prior to such proposed sale, transfer or syndication, an Officer's Certificate setting forth notice of the time period provided approval or disapproval and the basis for such determination, including evidence of compliance with each of the requirements for such Mortgage Loan set forth in the related Intercreditor Agreementloan documents; provided, however, if the proposed investor/transferee is a single member limited liability company not organized in Delaware or is not an accredited investor, the provisions of this paragraph of Section 3.08(a) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations shall not apply and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment any such transfer shall follow the procedures set forth in the first paragraph of Section 3.08(a); and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loansprovided, if anyfurther, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trustnotwithstanding Section 3.11(c), has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andany transfer approved pursuant to this paragraph, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer shall be entitled to certain of the fees as set forth on Exhibit W paid by the Mortgagor, and the Master Servicer shall not waive any such fees without the consent of the Special Servicer.
(b) If, with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation Master Servicer receives a request from each Pari Passu Companion Rating Agency with respect a Mortgagor for consent to a transfer of the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval Mortgaged Property and assumption of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing such Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect and/or consent to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject transfer of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth interests in the related Mortgage Loan Documents do not include the approval Mortgagor (including, without limitation, sales or transfers of the lender related Mortgaged Property (in full or in part) or the exercise sale, transfer, pledge or hypothecation of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth direct or indirect interests in the related Mortgage Loan Documents that do not include any other approval Mortgagor or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall promptly notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 3.27 and/or Section 6.11, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Serviced Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected no assumption of a Serviced Mortgage Loan is or relates to a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2008-C1)
Enforcement of Alienation Clauses. (a) If the provisions Upon receipt of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation waiver in respect of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c)provision, the applicable Master Servicer shall Servicer, with respect to Mortgage Loans that are not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan andLoans, if applicableand the Special Servicer, any related Performing with respect to Specially Serviced Pari Passu Companion LoanMortgage Loans, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide analyze such waiver, including the applicable Special Servicer preparation of written materials in connection with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available will close the related transaction, subject to the applicable consent rights (if any) of each Companion Holder pursuant to the related Intercreditor Agreement as provided in this Section 3.08. With respect to all Mortgage Loans other than Specially Serviced Mortgage Loans and the [__________] Serviced Mortgage Loan, the Master Servicer that or, in the case of Specially Serviced Mortgage Loans, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable Special Servicer may reasonably request in order to withhold or grant any such consentlaw, (2) enforce the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for restrictions contained in the related Intercreditor Agreement) Mortgage on transfers or further encumbrances of the applicable Special Servicer’s related Mortgaged Property and on transfers of interests in the related Mortgagor, unless following its receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer a request of a waiver in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver respect of a due-on-sale or due-on-encumbrance provision is involved the Master Servicer (with the written consent of the Special Servicer, which consent shall be deemed given if not denied within the later of (a) [__] Business Days after the Special Servicer's receipt of the written recommendation of the Master Servicer for such action and any additional information the Special Servicer may reasonably request for the analysis of such request (such recommendation and information may be delivered in an electronic format reasonably acceptable to the Master Servicer and the affected Serviced Special Servicer) and (b) [__] Business Days after the Controlling Class Representative's receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative may reasonably request for the analysis of such request, which notice shall be given by the Special Servicer no later than [__] Business Days after the commencement of the [__] Business Day period described in the preceding clause (a)) or the Special Servicer (with the written consent of the Controlling Class Representative, which consent shall be deemed given if not denied within [__] Business Days after the Controlling Class Representative's receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative may reasonably request for the analysis of such request), as applicable, has determined, consistent with the Servicing Standard, that the waiver of such restrictions would be in accordance with the Servicing Standard. Promptly after the Master Servicer (with the written consent of the Special Servicer to the extent required in the preceding sentence) or the Special Servicer (with the written consent of the Controlling Class Representative to the extent required in the preceding sentence), as applicable, has made any such determination, the Master Servicer or the Special Servicer shall deliver to the Trustee, the Rating Agencies and each other party hereto an Officer's Certificate setting forth the basis for such determination. Neither the Master Servicer nor the Special Servicer shall exercise (and the Special Servicer shall not consent to) any such waiver in respect of a due-on-encumbrance provision of any Mortgage Loan is a (i) with respect to which the aggregate of the Stated Principal Balance of such Mortgage Loan that (together with and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, are one of the ten largest Mortgage Loans or concentrations of Mortgage Loans, if anyas of the date of such waiver request, without receiving prior written confirmation from S&P and Moody's that are such action would not result in a downgrading, qualificxxxxx xr withdrawal of the same Cross-Collateralized Group as ratings then assigned to the Certificates or (ii) with respect to which (a) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the same Borrower as Mortgagor on such Mortgage Loan, is equal to or in excess of $20,000,000, (b) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have Borrowers that are known been made to be Mortgagors affiliated with the Borrower under Mortgagor on such Mortgage Loan, are greater than 2% of the aggregate Stated Principal Balance of all Mortgage Loans, (c) such Mortgage Loan is one of the ten largest Mortgage Loans then in as of the Trustdate of the waiver (by Stated Principal Balance), or (d) such Mortgage Loan has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio Value Ratio (including existing and proposed calculated to include the additional debtindebtedness secured by any encumbrance) that is equal to or greater than 85% and a Debt Service Coverage Ratio (calculated to include the additional debt from any encumbrance) of 1.2x or (d) has an aggregate debt service coverage ratio (including less, without receiving a prior written confirmation from S&P that such action would not result in a downgrading, qualification or withdrawal of the debt service on ratings then assigned to the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or Certificates. With respect to a waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable lawprovision, neither the Master Servicer nor the Special Servicer shall waive any such restriction without receiving prior written confirmation from Moody's and S&P that such action would not result in a downgrading, xxxxxxxcation or withdrawal of the ratings then assigned to the Certificates; provided that, if the Mortgage Loan (a) does not have an aggregate Stated Principal Balance (including the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan) equal to or in excess of $35,000,000 (or $25,000,000 with respect to Moody's), (b) does not have an aggregate Stated Principal Balance (ixxxxxxxg the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan) greater than 5% of the aggregate Stated Principal Balance of all Mortgage Loans or (c) is not one of the ten largest Mortgage Loans as of the date of the waiver (by Stated Principal Balance), the Master Servicer or the Special Servicer, as applicable, may waive such requirement without confirmation by S&P in accordance with the Servicing Standard; and provided, further, that, if the Mortgage Loan does not meet the criteria set forth in clause (ii) of the immediately preceding sentence, the Master Servicer or Special Servicer, as applicable, may waive such requirement without approval by S&P or Moody's in accordance with the Servicing Standard; and provided, furxxxx, xhat, if the Mortgage Loan is not one of the ten largest Mortgage Loans (by Stated Principal Balance, including all other Mortgage Loans that are cross-collateralized and cross-defaulted with such Mortgage Loan) as of the date of the waiver, the Master Servicer or Special Servicer, as applicable, may waive such requirement without approval by Fitch in accordance with the Servicing Standard. With respect to each Co-Lender Loan, no waiver of a due-on-sale or due-on-encumbrance provision will be effective unless the Master Servicer or Special Servicer, as applicable, first consults with the related Subordinate Companion Holder if required under the applicable Intercreditor Agreement.
(b) Notwithstanding any other provisions of this Section 3.08, the Master Servicer (with respect to a Performing Mortgage Loans other than Specially Serviced Mortgage Loan and, if applicable, any related Performing Loans and the [__________] Serviced Pari Passu Companion Mortgage Loan) nor (without the applicable Special Servicer's consent) or the Special Servicer (with respect to a Specially Serviced Mortgage LoanLoans) shall enter into such approval or waiver with respect may grant, without any Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor's request for consent to any subject the related Mortgaged Property which secures a Crossto an easement or right-Collateralized Group unless (i) all of-way for utilities, access, parking, public improvements or another purpose, and may consent to subordination of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither to such easement or right-of-way provided the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable the Special Servicer, as applicable, shall be permitted to deny have determined in accordance with the Servicing Standard that such easement or right-of-way shall not materially interfere with the then-current use of the related request;Mortgaged Property, or the security intended to be provided by such Mortgage, the related Mortgagor's ability to repay the Mortgage Loan, or materially or adversely affect the value of such Mortgaged Property or cause the Mortgage Loan to cease to be a "qualified mortgage" for REMIC purposes.
(Fc) neither Within [__] days of the applicable Master Servicer (Closing Date, with respect to each of the Mortgage Loans covered by an environmental insurance policy, if any, the Master Servicer shall notify the insurer under such environmental insurance policy and take all other action necessary for the Trustee, on behalf of the Certificateholders, to be an insured (and for the Master Servicer, on behalf of the Trust Fund, to make claims) under such environmental insurance policy. In the event that the Master Servicer has actual knowledge of any event (an "Insured Environmental Event") giving rise to a Performing Serviced claim under any environmental insurance policy in respect of any Mortgage Loan andcovered thereby, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Master Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in accordance with the terms of such environmental insurance policy and the Servicing Standard, timely make a claim thereunder with the appropriate insurer and shall take such other actions in accordance with the Servicing Standard which are necessary under such environmental insurance policy in order to realize the full value thereof for the benefit of the Certificateholders. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such approval or waiver, consent or agree claim under an environmental insurance policy shall be paid by the Master Servicer and shall be reimbursable to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with it as a Servicing Advance. With respect to any REMIC Pool each environmental insurance policy that relates to one or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op more Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debtLoans, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive review and familiarize itself with the terms and conditions relating to enforcement of claims and shall monitor the dates by which any right it has, claim must be made or grant any consent it is otherwise entitled action must be taken under such policy to withhold, realize the full value thereof for the benefit of the Certificateholders in accordance with any related “due-on-encumbrance” clause the event the Master Servicer has actual knowledge of an Insured Environmental Event giving rise to a claim under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to policy. In the Trust.
(b) In connection with any permitted assumption event that the Master Servicer receives notice of any Serviced termination of any environmental insurance policy that relates to one or more Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunderLoans, the applicable Master Servicer shall, within [__] Business Days after receipt of such notice, notify the Special Servicer, the Controlling Class Representative, the related Companion Holder (in the case of a Performing Serviced Mortgage Co-Lender Loan) or ), the applicable Special Rating Agencies and the Trustee of such termination in writing. Upon receipt of such notice, the Master Servicer (in the case of a with respect to non-Specially Serviced Mortgage LoanLoans, and the Special Servicer with respect to Specially Serviced Mortgage Loans, shall address such termination in accordance with Section 3.07(a) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower same manner as it would the termination of any other Insurance Policy required under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without documents. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Servicing Standard in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including connection with a consent to transfer to any subsidiary or affiliate resolution of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is termination of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs environmental insurance policy shall be paid by the Master Servicer and reimbursed shall be reimbursable to it as a Servicing Advance.
(d) For the avoidance of doubt, any servicing obligation set forth under this Section 3.08 of the Master Servicer or Special Servicer, as applicable, for any Co-Lender Loan shall also apply to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensationrelated Companion Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Commercial Mortgage Securities Inc)
Enforcement of Alienation Clauses. (a) If the provisions of any The Master Servicer (with respect to Mortgage Loans that are not Specially Serviced Mortgage Loan Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record, shall enforce any "due-on-sale" or Serviced Loan Combination expressly permits "due-on-encumbrance" clauses and any other restrictions contained in the assignment related Mortgage or other related loan document on transfers or further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon unless the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain Servicer, as the relevant information and review and make a determination to either case may be, has (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance determined, in its reasonable judgment (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent exercised in accordance with the Servicing Standard and which, for the avoidance of doubt, would include a determination that any required conditions to a transfer have been met), that waiver of the lender's rights under such clauses or the waiver of such other restrictions, as applicable, would be in accordance with the Servicing Standard and (ii) complied with the applicable requirements, if any, of Section 6.11 and Section 6.12; provided that:
(i) subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of Mortgage Loan documents and applicable law, neither the applicable Special Servicer’s receipt from the applicable Master Servicer of nor the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to the applicable Master Servicer withhold, in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a accordance with any related "due-on-sale provision encumbrance" clause under any Mortgage Loan that is involved a Significant Mortgage Loan, or if, taking into account existing debt on the subject Mortgaged Property (including any related Non-Trust Loan(s)) and the proposed additional debt as if such total debt were a single Mortgage Loan, the Loan-to-Value Ratio is equal to or greater than 85% or the Debt Service Coverage Ratio is equal to or less than 1.2x, unless it receives prior written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event or (if the Westchester Loan Combination is involved) a Westchester Related MBS Adverse Rating Event;
(ii) if the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Significant Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents documents and applicable law, neither the applicable Master Servicer nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Mortgage Loan until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event or (if the Westchester Loan Combination is involved) a Westchester Related MBS Adverse Rating Event; provided that, with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision provision, in the event that such Mortgage Loan is involvednot a Significant Mortgage Loan, thenand the Mortgage Loan documents contain a requirement for Rating Agency approval, the Master Servicer or the Special Servicer, subject to the related Mortgage Loan Documents Section 6.11 and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into Section 6.12 may waive such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any requirement without Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without ;
(iii) the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” " clause under any Mortgage Loan until it has delivered to the Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 6.11 and Section 6.12 which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of the Westchester Loan Combination, the Westchester Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) after receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information reasonably requested by the Special Servicer or the Controlling Class Representative;
(iv) the Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Mortgage Loan until it has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 6.11 and Section 6.12 (as applicable) which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of the Westchester Loan Combination, the Westchester Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) of receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information reasonably requested by the Special Servicer or the Controlling Class Representative;
(v) subject to the related Mortgage Loan documents and applicable law, neither the Master Servicer nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, pursuant to this paragraphor approve the assumption of any Mortgage Loan, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.Trust (it being understood and agreed that, except as expressly provided herein, neither the Master Servicer nor the Special Servicer shall be obligated to cover or assume any such costs or expenses); and
(bvi) neither the Master Servicer nor the Special Servicer shall (to the extent that it is within the control thereof to prohibit such event) consent to the transfer of any Mortgaged Property that secures a Crossed Loan Group unless (i) all of the Mortgaged Properties securing such Crossed Loan Group are transferred simultaneously by the respective Mortgagor or (ii) it obtains the consent of the Controlling Class Representative, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of the Westchester Loan Combination, the Westchester Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) of receipt by the Controlling Class Representative of written notice of such action and all reasonably requested information related thereto (or, if no information is requested, within 10 Business Days (or, if applicable, 15 Business Days) of receipt of written notice). If, in connection with an assumption of any Mortgage Loan, the applicable Mortgage Loan Seller bears the costs and expenses associated with such assumption in accordance with the terms of the applicable Mortgage Loan Purchase Agreement, any costs and expenses subsequently recovered by the Master Servicer from the related Mortgagor in respect of such assumption shall be promptly remitted by the Master Servicer to the applicable Mortgage Loan Seller. In the case of any Mortgage Loan, the Master Servicer and the Special Servicer shall each provide the other with all such information as each may reasonably request in order to perform its duties under this section. In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Servicer, with respect to Mortgage Loan) or the applicable Special Servicer (in the case of a Loans that are not Specially Serviced Mortgage Loan) Loans, or the Special Servicer, with respect to Specially Serviced Mortgage Loans, shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(cb) Notwithstanding any other provisions of this Section 3.08(a)3.08, in connection the Master Servicer with any transfer of an interest in respect to Mortgage Loans that are not Specially Serviced Mortgage Loans (without the Special Servicer's consent, but subject to delivering notice to the Special Servicer and the Controlling Class Representative (and with respect to a Loan Combination, the related Borrower under a Performing Non-Trust Noteholder(s)) or the Special Servicer with respect to Specially Serviced Mortgage Loan or related Serviced Pari Passu Companion LoanLoans, the applicable Master Servicer shall have the right to grant its as applicable, may grant, without any Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor's request for consent to subject the same without the related Mortgaged Property to an easement, right-of-way or other similar agreement for utilities, access, parking, public improvements or another purpose, and may consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms to subordination of the related Mortgage Loan Documents without to such easement, right-of-way or other similar agreement provided the exercise of any lender approval Master Servicer or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Special Servicer, as applicable, shall have determined in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated accordance with the Borrower under Servicing Standard that such Mortgage Loaneasement, is one of right-of-way or other similar agreement shall not materially interfere with the then-current top ten use of the related Mortgaged Property, the security intended to be provided by such Mortgage Loans (by Stated Principal Balance) in or the related Mortgagor's ability to repay the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000Loan, or has a Stated Principal Balance that equals materially and adversely affect the value of such Mortgaged Property, or exceeds 5% of the then-aggregate Stated Principal Balance of cause the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are cease to be payable by the related Borrower to the extent provided a qualified mortgage loan for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationREMIC purposes.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-McP1)
Enforcement of Alienation Clauses. (a) If the provisions of any The Master Servicers (with respect to Mortgage Loans that are not Specially Serviced Mortgage Loan Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record, shall enforce any "due-on-sale" or Serviced Loan Combination expressly permits "due-on-encumbrance" clauses and any other restrictions contained in the assignment related Mortgage or other related loan document on transfers or further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable unless either Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain Servicer, as the relevant information and review and make a determination to either case may be, has (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance determined, in its reasonable judgment (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent exercised in accordance with the Servicing Standard (and subject which, for the avoidance of doubt, would include a determination that any required conditions to Section 3.24a transfer have been met), and/or Section 3.26 if and that waiver of the lender's rights under such clauses or the waiver of such other restrictions, as applicable), would be in accordance with the Servicing Standard and (3ii) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of complied with the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loansrequirements, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan Section 6.11 and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities6.12; andprovided that:
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents documents and applicable law, neither of the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) Servicers nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” " clause under any Trust Mortgage Loan that is a Significant Mortgage Loan, or if, taking into account existing debt on the subject Mortgaged Property (including any related Non-Trust Loan(s)) and the proposed additional debt as if such total debt were a single mortgage loan, the Loan-to-Value Ratio is equal to or greater than 85% or the Debt Service Coverage Ratio is equal to or less than 1.2x, unless it receives prior written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event (except that prior written confirmation from Fitch or Xxxxx'x shall not be required unless the Trust Mortgage Loan is a Significant Mortgage Loan);
(ii) if the affected Trust Mortgage Loan is a Significant Mortgage Loan, then, subject to the related Mortgage Loan documents and applicable law, neither the Master Servicers nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Trust Mortgage Loan until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event; provided that, with respect to a waiver of a due-on-sale provision, in the event that such Mortgage Loan is not a Significant Mortgage Loan, and the Mortgage Loan documents contain a requirement for Rating Agency approval, either Master Servicer or the Special Servicer, subject to Section 6.11 and, if applicable, Section 6.12 may waive such requirement without Rating Agency approval in accordance with the Servicing Standard;
(iii) subject to the related Mortgage Loan documents and applicable law, neither Master Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-encumbrance" clause under any Trust Mortgage Loan that is not a Specially Serviced Mortgage Loan until it has delivered to the Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard, Section 6.11 and, if applicable, Section 6.12, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of a Loan Combination, the related Loan Combination Controlling Party, if any, is entitled to object pursuant to Section 6.12), 15 Business Days, (which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) after receipt by the Special Servicer of the applicable Master Servicer's written recommendation and analysis and any additional information reasonably requested by the Special Servicer or the Controlling Class Representative);
(iv) subject to the related Mortgage Loan documents and applicable law, neither Master Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Trust Mortgage Loan that is not a Specially Serviced Mortgage Loan until it has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard, Section 6.11 and, if applicable, Section 6.12, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of a Loan Combination, the related Loan Combination Controlling Party, if any, is entitled to object pursuant to Section 6.12), 15 Business Days, (which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) of receipt by the Special Servicer of the applicable Master Servicer's written recommendation and analysis and any additional information reasonably requested by the Special Servicer or the Controlling Class Representative);
(v) subject to the related Mortgage Loan documents and applicable law, neither the Master Servicers nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, pursuant to this paragraphor approve the assumption of any Mortgage Loan, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.Trust (it being understood and agreed that, except as expressly provided herein, neither the Master Servicers nor the Special Servicer shall be obligated to cover or assume any such costs or expenses); and
(bvi) neither the Master Servicers nor the Special Servicer shall (to the extent that it is within the control thereof to prohibit such event) consent to the transfer of any Mortgaged Property that secures a Crossed Loan Group unless (i) all of the Mortgaged Properties securing such Crossed Loan Group are transferred simultaneously by the respective Mortgagor or (ii) it obtains the consent of the Controlling Class Representative, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of a Loan Combination, the related Loan Combination Controlling Party, if any, is entitled to object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) of receipt by the Controlling Class Representative of written notice of such action and all reasonably requested information related thereto (or, if no information is requested, within 10 Business Days (or, if applicable, 15 Business Days) of receipt of written notice). If, in connection with an assumption of any Mortgage Loan, the applicable Mortgage Loan Seller bears the costs and expenses associated with such assumption in accordance with the terms of the applicable Mortgage Loan Purchase Agreement, any costs and expenses subsequently recovered by the applicable Master Servicer from the related Mortgagor in respect of such assumption shall be promptly remitted by such Master Servicer to the applicable Mortgage Loan Seller. In the case of any Mortgage Loan, the applicable Master Servicer and the Special Servicer shall each provide the other with all such information as each may reasonably request in order to perform its duties under this Section. In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Servicer, with respect to Mortgage Loan) or the applicable Special Servicer (in the case of a Loans that are not Specially Serviced Mortgage Loan) Loans, or the Special Servicer, with respect to the Specially Serviced Mortgage Loans, shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
. If either Master Servicer or the Special Servicer, as applicable, consents subsequent to the Closing Date to the incurrence by the principal(s) of a Mortgagor under a Trust Mortgage Loan of mezzanine financing or the incurrence by a Mortgagor of subordinate debt and enters into an intercreditor agreement, such servicer (cto the extent it is permitted to do so under the related loan documents and applicable law and in accordance with the Servicing Standard) Notwithstanding Section 3.08(a), shall require the related mezzanine or subordinate lender to agree to pay a Principal Recovery Fee in connection with any transfer of an interest purchase right that arises upon a loan default in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, event such purchase occurs after the applicable Master Servicer shall have expiration of 60 days from the date the right to grant its purchase arises under such intercreditor agreement. The foregoing sentence shall not operate to modify the provisions of the preceding paragraph of this Section 3.08(a) regarding due-on-sale and due-on-encumbrance provisions.
(b) Notwithstanding any other provisions of this Section 3.08, either Master Servicer with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans (without the Special Servicer's consent, but subject to delivering prior notice to the Special Servicer and the Controlling Class Representative (and with respect to a Loan Combination, the related Non-Trust Noteholder(s)) or the Special Servicer with respect to the Specially Serviced Mortgage Loans, as applicable, may grant, without any Rating Agency confirmation as otherwise provided in paragraph (a) above, a Mortgagor's request for consent to subject the same without the related Mortgaged Property to an easement, right-of-way or other similar agreement for utilities, access, parking, public improvements or another purpose, and may consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms to subordination of the related Mortgage Loan Documents without to such easement, right-of-way or other similar agreement provided the exercise of any lender approval applicable Master Servicer or discretion other than confirming the satisfaction of Special Servicer, as the other conditions to the transfer set forth case may be, shall have determined in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated accordance with the Borrower under Servicing Standard that such Mortgage Loaneasement, is one of right-of-way or other similar agreement shall not materially interfere with the then-current top ten use of the related Mortgaged Property, the security intended to be provided by such Mortgage Loans (by Stated Principal Balance) in or the related Mortgagor's ability to repay the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000Loan, or has a Stated Principal Balance that equals materially and adversely affect the value of such Mortgaged Property, or exceeds 5% of the then-aggregate Stated Principal Balance of cause the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are cease to be payable by the related Borrower to the extent provided a qualified mortgage loan for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationREMIC purposes.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-3)
Enforcement of Alienation Clauses. (a) If the provisions of any The Master Servicer (with respect to Mortgage Loans that are not Specially Serviced Mortgage Loan Loans) and the Special Servicer (with respect to all other Mortgage Loans), on behalf of the Trustee as the mortgagee of record, shall enforce any "due-on-sale" or Serviced Loan Combination expressly permits "due-on-encumbrance" clauses and any other restrictions contained in the assignment related Mortgage or other related loan document on transfers or further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon unless the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain Servicer, as the relevant information and review and make a determination to either case may be, has (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance determined, in its reasonable judgment (exercised in accordance with the case of a Borrower request for approval thereof) and not waive any violation Servicing Standard), that waiver of the relevant due-on-sale clause lender's rights under such clauses or due-on-encumbrance clause or (ii) if in the best economic interest waiver of the Trust andsuch other restrictions, if as applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent would be in accordance with the Servicing Standard and (ii) complied with the applicable requirements, if any, of Section 6.11 and Section 6.12; provided that:
(i) subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of Mortgage Loan documents and applicable law, neither the applicable Special Servicer’s receipt from the applicable Master Servicer of nor the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to the applicable Master Servicer withhold, in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a accordance with any related "due-on-sale provision encumbrance" clause under any Trust Mortgage Loan that is involved a Significant Mortgage Loan, or if, taking into account existing debt on the subject Mortgaged Property (including any related Non-Trust Loan(s)) and the proposed additional debt as if such total debt were a single mortgage loan, the Loan-to-Value Ratio is equal to or greater than 85% or the Debt Service Coverage Ratio is equal to or less than 1.2x, unless it receives prior written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event or (if the Glendale Galleria Loan Combination is involved) a Glendale Galleria Related MBS Adverse Rating Event;
(ii) if the affected Serviced Trust Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Significant Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents documents and applicable law, neither the applicable Master Servicer nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Trust Mortgage Loan until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event or (if the Glendale Galleria Loan Combination is involved) a Glendale Galleria Related MBS Adverse Rating Event; provided that, with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involvedprovision, then, subject to in the related event that such Mortgage Loan Documents is not a Significant Mortgage Loan, and applicable lawthe Mortgage Loan documents contain a requirement for Rating Agency approval, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) aboveServicer) or (y) in the case of the applicable Special Servicer, it has obtained subject to Section 6.11 and Section 6.12 may waive such requirement without Rating Agency approval in accordance with the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable)Servicing Standard;
(Eiii) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” " clause under any Trust Mortgage Loan that is not a Specially Serviced Mortgage Loan until it has delivered to the Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 6.11 and Section 6.12, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of the Glendale Galleria Loan Combination, the Glendale Galleria Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) after receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information reasonably requested by the Special Servicer or the Controlling Class Representative);
(iv) subject to the related Mortgage Loan documents and applicable law, the Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Trust Mortgage Loan that is not a Specially Serviced Mortgage Loan until it has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 6.11 and Section 6.12 (as applicable), which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of the Glendale Galleria Loan Combination, the Glendale Galleria Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) of receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information reasonably requested by the Special Servicer or the Controlling Class Representative);
(v) subject to the related Mortgage Loan documents and applicable law, neither the Master Servicer nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, pursuant to this paragraphor approve the assumption of any Mortgage Loan, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.Trust (it being understood and agreed that, except as expressly provided herein, neither the Master Servicer nor the Special Servicer shall be obligated to cover or assume any such costs or expenses); and
(bvi) neither the Master Servicer nor the Special Servicer shall (to the extent that it is within the control thereof to prohibit such event) consent to the transfer of any Mortgaged Property that secures a Crossed Loan Group unless (i) all of the Serviced Mortgaged Properties securing such Crossed Loan Group are transferred simultaneously by the respective Mortgagor or (ii) it obtains the consent of the Controlling Class Representative, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of the Glendale Galleria Loan Combination, the Glendale Galleria Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) of receipt by the Controlling Class Representative of written notice of such action and all reasonably requested information related thereto (or, if no information is requested, within 10 Business Days (or, if applicable, 15 Business Days) of receipt of written notice). If, in connection with an assumption of any Mortgage Loan, the applicable Mortgage Loan Seller bears the costs and expenses associated with such assumption in accordance with the terms of the applicable Mortgage Loan Purchase Agreement, any costs and expenses subsequently recovered by the Master Servicer from the related Mortgagor in respect of such assumption shall be promptly remitted by the Master Servicer to the applicable Mortgage Loan Seller. In the case of any Mortgage Loan, the Master Servicer and the Special Servicer shall each provide the other with all such information as each may reasonably request in order to perform its duties under this section. In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Servicer, with respect to Mortgage Loan) or the applicable Special Servicer (in the case of a Loans that are not Specially Serviced Mortgage Loan) Loans, or the Special Servicer, with respect to all other Mortgage Loans, shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(cb) Notwithstanding any other provisions of this Section 3.08(a)3.08, in connection the Master Servicer with any transfer of an interest in respect to Mortgage Loans that are not Specially Serviced Mortgage Loans (without the Special Servicer's consent, but subject to delivering prior notice to the Special Servicer and the Controlling Class Representative (and with respect to a Loan Combination, the related Borrower under Non-Trust Noteholder(s)) or the Special Servicer with respect to all other Mortgage Loans, as applicable, may grant, without any Rating Agency confirmation as provided in paragraph (a) above, a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its Mortgagor's request for consent to subject the same without the related Mortgaged Property to an easement, right-of-way or other similar agreement for utilities, access, parking, public improvements or another purpose, and may consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms to subordination of the related Mortgage Loan Documents without to such easement, right-of-way or other similar agreement provided the exercise of any lender approval Master Servicer or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Special Servicer, as applicable, shall have determined in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated accordance with the Borrower under Servicing Standard that such Mortgage Loaneasement, is one of right-of-way or other similar agreement shall not materially interfere with the then-current top ten use of the related Mortgaged Property, the security intended to be provided by such Mortgage Loans (by Stated Principal Balance) in or the related Mortgagor's ability to repay the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000Loan, or has a Stated Principal Balance that equals materially and adversely affect the value of such Mortgaged Property, or exceeds 5% of the then-aggregate Stated Principal Balance of cause the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are cease to be payable by the related Borrower to the extent provided a qualified mortgage loan for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationREMIC purposes.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Cki1)
Enforcement of Alienation Clauses. (a) If the provisions of any With respect to all non-Specially Serviced Mortgage Loan Loans, the Master Servicer, and with respect to all Specially Serviced Mortgage Loans, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or Serviced Loan Combination expressly permits the assignment further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon unless the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (has determined, consistent with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove Servicing Standard, that waiver of such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent would be in accordance with the Servicing Standard (and subject to Section 3.24Standard. Promptly after the Master Servicer or Special Servicer, and/or Section 3.26 if and as applicable), and (3) if has made any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after determination, the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available shall deliver to the applicable Master Servicer in order to make an informed decisionTrustee, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved the Rating Agencies and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loansuch determination has been made by the Special Servicer) an Officers' Certificate setting forth the basis for such determination. Neither the Master Servicer nor the applicable Special Servicer shall (with a) exercise any such waiver in respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involvedfor any Mortgage Loan or (b) waive any due on sale provision for any Mortgage Loan that has a principal balance in excess of 2% of the aggregate principal balances of all Mortgage Loans without receiving the prior written confirmation from the Rating Agencies that such action would not result in a downgrading, thenqualification or withdrawal of the ratings then assigned to the Certificates; provided that, subject to in the event that the principal balance of the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect is equal to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents less than 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one as of the ten largest Mortgage Loans then date of such waiver, no prior written consent will be required from DCR, but the Special Servicer will deliver notice of such waiver to DCR. Neither the Master Servicer nor the Special Servicer shall approve a request from a Mortgagor to incur additional indebtedness except as provided in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if documents and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to not inconsistent with the related Mortgage Loan Documents and applicable law, neither documents the applicable Master Servicer (with respect will obtain the prior written confirmation that the incurrance of such additional indebtedness will not result in a downgrade, withdrawal or qualification on the then-current ratings assigned to a Performing Serviced Mortgage Loan and, if applicablethe Certificates. The Master Servicer will take no action which impairs the enforceability of the Lease Enhancement Policy, any related Performing Serviced Pari Passu Companion Loan) nor RVI Policy or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs Fleet Letter of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicableCredit. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used restriction with respect to any specified person means further encumbrances set forth herein shall apply to any lien placed on a Mortgaged Property as the power to direct the management and policies result of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable any Master Servicer shall not consent to such transfer unless and until such transfer is the subject of making a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationProtective Advance hereunder.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or As to each Serviced Loan Combination expressly permits that contains a provision in the assignment nature of a (i) "due-on-sale" clause (which includes, without limitation, sales or transfers of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, (in full or in part) or the transfers sale, transfer, pledge or hypothecation of interests direct or indirect interest in the related BorrowerBorrower or its owners), in each case which by its terms (1) provides that such Serviced Loan shall (or may at the mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Mortgagor; (2) provides that such Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice mortgagee or satisfaction of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, certain conditions in connection with any such approval sale or waiverother transfer, consent or agree to any modification, waiver or amendment of any term or provision of for so long as such Serviced Mortgage Loan that would result is included in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor the Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan Fund or (y)(a3) provides that such Serviced Loan may be assumed or transferred without the transaction is permitted under consent of the related Mortgage Loan Documents and (b) the mortgagee provided that certain conditions to the transaction that are set forth in the related Mortgage loan documents are satisfied, or (ii) as to each Serviced Loan Documents do not include that contains a provision in the approval nature of a "due-on-encumbrance" clause (including, without limitation, any mezzanine financing of the lender related Borrower or the exercise related Mortgaged Property or any sale or transfer of lender discretion preferred equity in such Borrower or its direct or indirect owners), that by its terms: (1) provides that such Serviced Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other than confirming the satisfaction of the other conditions to the transaction set forth in encumbrance on the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or Mortgaged Property; (2) requires the consent of the Mortgagee mortgagee or satisfaction of certain conditions to the creation of any such additional lien or other encumbrance on the related Mortgaged Property; or (3) provides that such Serviced Loan may be further encumbered provided that certain conditions set forth in order to incur subordinate debtthe loan documents have been satisfied, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Serviced Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Serviced Loan (x) to accelerate the payments thereon, (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without Standard or (z) determine whether the need to obtain any consent or approval hereunder conditions set forth in clause (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions a)(i)(3) above have been met; provided that, subject satisfied. Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause (including, but not limited to, making any determination that the conditions set forth in clauses (a)(i)(3) and (a)(ii)(3) have been satisfied), unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Serviced Loans in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause (including, but not limited to, making any determination that the conditions set forth in clauses (a)(i)(3) and (a)(ii)(3) have been satisfied) without first obtaining the consent of the Special Servicer. The Special Servicer's consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the immediately succeeding sentence and all information reasonably requested by the Special Servicer and the Special Servicer shall not have responded in writing, via fax or e mail within 15 Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties). In connection with the request set forth above, the Master Servicer shall provide to the Special Servicer written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Special Servicer shall reasonably request and a request for approval by the Special Servicer.
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Directing Certificateholder for (a) any Non-Partitioned Loan and/or a Post CAP Serviced Whole Loan that is a Performing Serviced Loan or (b) for any Specially Serviced Loan that is a Non-Partitioned Loan and/or a Post CAP Serviced Whole Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e mail within ten Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) With respect to the Serviced Whole Loan for which a related Control Appraisal Period does not exist, (A) the Master Servicer with respect to those time periods when such Loan is a Performing Serviced Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Special Servicer, which consent shall not be given without the Special Servicer first obtaining the consent of the One Stamford Forum Controlling Holder, and (B) the Special Servicer with respect to those time periods when either such Loan is a Specially Serviced Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the One Stamford Forum Controlling Holder. Consent by a One Stamford Forum Controlling Holder shall be deemed given if the Master Servicer or Special Servicer, as applicable, shall have provided such One Stamford Forum Controlling Holder written notice of the matter together with all of the information set forth in the last sentence of the first paragraph of clause (ii) above and such One Stamford Forum Controlling Holder shall not have responded in writing, via fax or email within ten Business Days of such request.
(iv) Notwithstanding anything to the contrary contained herein, the Master Servicer shall not permit any such transfer, assumption or further encumbrance of such Serviced Loan or related Mortgaged Property or interests in the related Borrower, if the Special Servicer, in accordance with the Servicing Standard, (a) notifies the Master Servicer of its determination with respect to any Serviced Loan (which by its terms permits the transfer, assumption or further encumbrance without mortgagee consent provided certain conditions are satisfied and the determination as to whether any such conditions are satisfied would require the mortgagee to exercise the judgment of a reasonable prudent commercial lender) that the conditions required under the related loan documents have not been satisfied or (b) objects in writing to the Master Servicer's determination that such conditions have been satisfied with respect to any such Serviced Loan.
(v) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a), if any Mortgage Loan with an outstanding principal balance of greater than $5,000,000:
(1) represents greater than 5% of the then outstanding principal balance of the Mortgage Pool;
(2) has an outstanding principal balance of greater than $20,000,000; or
(3) is one of the ten largest Mortgage Loans in the Trust Fund based on outstanding principal balance, then neither the Master Servicer nor Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vi) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-encumbrance" clause as described in Section 3.08(a), if any Mortgage Loan:
(1) represents greater than 2% of the then outstanding principal balance of the Mortgage Pool, or
(2) is at the time one of the ten largest Mortgage Loans (by outstanding principal balance) in the Mortgage Pool or has an outstanding principal balance of greater than $20,000,000, or
(3) after taking into consideration any additional indebtedness secured by the related Mortgaged Property, the loan-to-value ratio for such Mortgage Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor the Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-encumbrance" clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Set unless the Master Servicer or Special Servicer, as applicable, shall have obtained written confirmation from each Rating Agency that such action shall not result in a qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vii) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2006-3)
Enforcement of Alienation Clauses. (a) If As to each Loan (other than the provisions Fashion Show Mall Mortgage Loan) that contains a provision in the nature of any Serviced Mortgage Loan a (i) "due-on-sale" clause (which includes, without limitation, sales or Serviced Loan Combination expressly permits the assignment transfers of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, (in full or in part) or the transfers sale, transfer, pledge or hypothecation of interests direct or indirect interest in the related BorrowerBorrower or its owners), in each case which by its terms (1) provides that such Loan shall (or may at the mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgage Mortgagor; (2) provides that such Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice mortgagee or satisfaction of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, certain conditions in connection with any such approval sale or waiverother transfer, consent or agree to any modification, waiver or amendment of any term or provision of for so long as such Serviced Mortgage Loan that would result is included in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor the Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan Fund or (y)(a3) provides that such Loan may be assumed or transferred without the transaction is permitted under consent of the related Mortgage Loan Documents and (b) the mortgagee provided that certain conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender documents are satisfied, or the exercise of lender discretion (ii) as to each Loan (other than confirming the satisfaction Fashion Show Mall Mortgage Loan) that contains a provision in the nature of a "due-on-encumbrance" clause (including, without limitation, any mezzanine financing of the other conditions to the transaction set forth in related Borrower or the related Mortgage Mortgaged Property or any sale or transfer of preferred equity in such Borrower or its direct or indirect owners), that by its terms: (1) provides that such Loan Documents that do not include shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other approval or exercise of discretion). Notwithstanding encumbrance on the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or related Mortgaged Property; (2) requires the consent of the Mortgagee mortgagee or satisfaction of certain conditions to the creation of any such additional lien or other encumbrance on the related Mortgaged Property; or (3) provides that such Loan may be further encumbered provided that certain conditions set forth in order to incur subordinate debtthe Loan documents have been satisfied, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Loan (x) to accelerate the payments thereon, (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without Standard or (z) determine whether the need to obtain any consent or approval hereunder conditions set forth in clauses (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions a)(i)(3) above have been met; provided that, subject satisfied. Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause (including, but not limited to, making any determination that the conditions set forth in clauses (a)(i)(3) and (a)(ii)(3) have been satisfied), unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Loans in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause (including, but not limited to, making any determination that the conditions set forth in clauses (a)(i)(3) and (a)(ii)(3) have been satisfied) without first obtaining the consent of the Special Servicer. The Special Servicer's consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the immediately succeeding sentence and all information reasonably requested by the Special Servicer and the Special Servicer shall not have responded in writing, via fax or e mail within 15 Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties). In connection with the request set forth above, the Master Servicer shall provide to the Special Servicer written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Special Servicer shall reasonably request and a request for approval by the Special Servicer.
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Directing Certificateholder for (a) any Non-Partitioned Loan and/or a Post CAP Loan that is a Performing Loan or (b) for any Specially Serviced Loan that is a Non-Partitioned Loan and/or a Post CAP Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e mail within ten Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) With respect to the CP Component Mortgage Loan or any A/B Whole Loan for which a related Control Appraisal Period does not exist, (A) the Master Servicer with respect to those time periods when such Loan is a Performing Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Special Servicer, which consent shall not be given without the Special Servicer first obtaining the consent of the related Controlling Holder, and (B) the Special Servicer with respect to those time periods when either such Loan is a Specially Serviced Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the related Controlling Holder in the case of the CP Component Mortgage Loan. Consent by a Controlling Holder shall be deemed given if the Master Servicer or Special Servicer, as applicable, shall have provided such Controlling Holder written notice of the matter together with all of the information set forth in the last sentence of the first paragraph of clause (ii) above and such Controlling Holder shall not have responded in writing, via fax or email within ten Business Days of such request.
(iv) [Reserved].
(v) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a), if any Mortgage Loan with an outstanding principal balance of greater than $5,000,000:
(1) represents greater than 5% of the then outstanding principal balance of the Mortgage Pool;
(2) has an outstanding principal balance of greater than $20,000,000; or
(3) is one of the ten largest Mortgage Loans in the Trust Fund based on outstanding principal balance, then neither the Master Servicer nor Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vi) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-encumbrance" clause as described in Section 3.08(a), if any Mortgage Loan:
(1) represents greater than 2% of the then outstanding principal balance of the Mortgage Pool, or
(2) is at the time one of the ten largest Mortgage Loans (by outstanding principal balance) in the Mortgage Pool or has an outstanding principal balance of greater than $20,000,000, or
(3) after taking into consideration any additional indebtedness secured by the related Mortgaged Property, the loan-to-value ratio for such Mortgage Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor the Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-encumbrance" clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Group unless the Master Servicer or Special Servicer, as applicable, shall have obtained written confirmation from each Rating Agency that such action shall not result in a qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vii) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the Loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2005-2)
Enforcement of Alienation Clauses. (a) If In the event that the Master Servicer receives a request from a Mortgagor pursuant to the provisions of any Loan (other than a Specially Serviced Mortgage Loan) that expressly permit, with the lender's consent, subject to the conditions described in the Loan or Serviced Loan Combination expressly permits documents, the assignment transfer of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, Person or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of certain interests in such BorrowerMortgagor, the Master Servicer shall promptly obtain relevant information for purposes of evaluating such request. If the Master Servicer recommends to approve such transfer and/or assumption, the Master Servicer shall promptly provide to the Special Servicer a copy of such recommendation (which shall include the reason therefor) requests approval and the materials upon which such recommendation is based. The Special Servicer shall have the right hereunder, within 15 days of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, to reasonably withhold or, subject to Section 3.08(d), Section 6.11 and Section 6.11A, grant consent to any such request for such an assignment transfer and/or assumption in accordance with the terms of the Loan and assumption this Agreement, including, without limitation, the Servicing Standard. If the Special Servicer does not respond within such 15-day period, the Special Servicer's consent shall be deemed granted. In connection with its review with respect to a non-Specially Serviced Loan pursuant to this subsection (a), the Special Servicer will be entitled to a Special Servicer Assumption Review Fee. If the Special Servicer consents or is deemed to have consented to such proposed transfer or enters into and/or assumption, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Loan by, another Person, the Master Servicer shall be authorized to enter into an assumption or of interest(s) in such Borrower in violation of substitution agreement with the related Mortgage Loan DocumentsPerson, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of which shall be a Single Purpose Entity, to whom the related Mortgaged Property upon has been or is proposed to be conveyed and/or release the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and original Mortgagor from liability under the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of Loan and substitute as obligor thereunder the Person to whom the related Mortgage Loan DocumentsMortgaged Property has been or is proposed to be conveyed; provided, however, that the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and agreement to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, that any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that terms thereof would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) aboveor create any lien on a Mortgaged Property that is senior to, or itself enter into such an approval or waiveron parity with, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval lien of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion)Mortgage. Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB The Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to notify the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunderTrustee, the applicable Master Servicer (Special Servicer, each Rating Agency and, in the case of a Performing Serviced Mortgage Loanthe UBS Warburg Building Loan Pair, the UBS Warburg Building Companion Loan Noteholder, of any assumption or substitution agreement executed pursuant to this Section 3.08(a) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery forward thereto a copy of such documents.
(c) Notwithstanding Section 3.08(a), in connection agreement together with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right Review Package. Subject to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents documents and applicable law, if no assumption of a Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Mortgagor.
(ib) the affected Serviced Mortgage Loan is or relates Other than with respect to a transfer and assumption referred to in subsection (a) above, if any Mortgage contains restrictions on transfers of the related Mortgaged Property and/or transfers of interests in the related Mortgagor, then the Special Servicer, on behalf of the Trust (and, with respect to the UBS Warburg Building Loan thatPair, the UBS Warburg Building Companion Loan Noteholder), and not the Master Servicer, shall, to the extent permitted by applicable law, enforce such restrictions, unless the Special Servicer has determined, in its reasonable, good faith judgment, that waiver of such restrictions would be in accordance with the Servicing Standard (as evidenced by an Officer's Certificate setting forth the basis for such determination delivered, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.Review
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Securities Corp)
Enforcement of Alienation Clauses. The Master Servicer (awith respect to Performing Mortgage Loans) If and the provisions of any Special Servicer (with respect to Specially Serviced Mortgage Loan Loans), on behalf of the Trustee as the mortgagee of record, shall enforce any restrictions, contained in the related Mortgage or Serviced Loan Combination expressly permits the assignment other related loan document on transfers or further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, on transfers or the transfers encumbrances of interests in the related Borrower, in each unless the Master Servicer or the Special Servicer, as the case upon the satisfaction of specified conditionsmay be, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrancehas determined, in each caseits reasonable judgment, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for that waiver of such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent would be in accordance with the Servicing Standard (and Standard; provided that, subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of Mortgage Loan Documents and applicable law, neither the applicable Special Servicer’s receipt from the applicable Master Servicer of nor the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to the applicable Master Servicer in order to make an informed decisionwithhold, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a under any related "due-on-sale provision is involved and the affected Serviced sale" clause or "due-on-encumbrance" clause until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates, if (but only if) with respect to a "due-on-sale" clause, such "due-on-sale" clause involves any Mortgage Loan is a Mortgage Loan that (that, individually or together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known Loan, with respect to be affiliated with the Borrower under such S&P, is a Significant Mortgage Loan) , and with respect to Moody's, has an original principal balance that is one of the ten largest higxxxx xxiginal principal balances in the Mortgage Pool or, with respect to the enforcement of a "due-on-encumbrance" clause, such Mortgage Loan or group of Cross-Collateralized Mortgage Loans: with respect to S&P is (A) a Significant Mortgage Loan or represents 2% or more of the aggregate outstanding principal balance of the Mortgage Pool at such time, or (B) by itself, or as part of a Crossed Mortgage Loan group or group of Mortgage Loans then with affiliated Borrowers has (a) a Loan-to-Value Ratio equal to or greater than 85% or (b) a Debt Service Coverage Ratio equal to or less than 1.2x (in each case, treating the existing debt on the subject Mortgaged Property and the proposed additional debt as if such total debt were a single Mortgage Loan), or with respect to Moody's, has an original principal balance that is one of the ten higxxxx xxiginal principal balances in the TrustMortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000and provided, further, that the Master Servicer shall not waive any right it has, or if a Serviced grant any consent it is otherwise entitled to withhold under any "due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan Combination is involvedfor which it acts as Master Servicer until it has received the consent of the Special Servicer (the giving of which consent shall be subject to Section 3.24; and provided, thenfurther, that, subject to the related Mortgage Loan Documents and applicable law, neither the applicable such Master Servicer (with respect nor such Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to a Performing Serviced Mortgage Loan andwithhold, if applicable, under any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a "due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval sale" or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a "due-on-sale provision is involvedencumbrance" clause under any Mortgage Loan, thenor approve the assumption of any Mortgage Loan, subject unless in any such case, all associated costs and expenses are covered without any expense to the related Mortgage Loan Documents Trust (it being understood and applicable lawagreed that, except as expressly provided herein, neither the applicable such Special Servicer nor such Master Servicer (with respect shall be obligated to a Performing Serviced Mortgage Loan andcover or assume any such costs or expenses); and provided, if applicablefurther, any related Performing Serviced Pari Passu Companion Loan) that neither the Master Servicer nor the applicable Special Servicer shall (with respect to a Specially Serviced Mortgage Loanthe extent that it is within the control thereof to prohibit such event) shall enter into such approval or waiver with respect consent to the transfer of any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) Borrower or (ii) either (x) in the case of the applicable Master Servicer, it has obtained obtains the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Controlling Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB limitations of Section 3.24(b). The Master Servicer and the Special Servicer shall not waive each provide the other and the Controlling Class Representative with all such information as each may reasonably request in order to make any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause determination required under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) . In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage LoanLoan ) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), . If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in a Borrower or a Mortgaged Property, then such Master Servicer or such Special Servicer, as applicable, will apply that fee to cover the costs and expenses associated with that transfer or proposed transfer that are not otherwise paid by the related Borrower and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses, to the extent such fees and expenses are expressly required to be paid by the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise Document or applicable law. Any remaining portion of any lender approval such assumption fee (such remaining portion, a "Net Assumption Fee") or discretion other than confirming the satisfaction of the other conditions such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer or the Special Servicer in accordance with Section 3.11. Neither the Master Servicer nor the Special Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (andwaive any assumption fee or assumption application fee, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided it would constitute additional compensation for in the related Mortgage Loan Documentsother such party, which provisions shall not be waived by without the applicable Master Servicer, and, if not paid, consent of such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensationother party.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C3)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable The Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or and the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation ), on behalf of the relevant Trustee as the mortgagee of record, shall enforce any "due-on-sale clause sale" or "due-on-encumbrance clause or (ii) if encumbrance" clauses and any other restrictions contained in the best economic interest related Mortgage Loan Documents on transfers or further encumbrances of the Trust andrelated Mortgaged Property and on transfers of interests in the related Borrower, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve unless the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into or the Special Servicer, as the case may be, has (i) determined, in its reasonable judgment, that waiver of such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent restrictions would be in accordance with the Servicing Standard and (ii) complied with the applicable requirements, if any, of SECTION 3.20(A) and SECTION 3.24; PROVIDED that, subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of Mortgage Loan Documents and applicable law, neither the applicable Special Servicer’s receipt from the applicable Master Servicer of nor the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to the applicable Master Servicer withhold, in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a accordance with any related "due-on-sale provision is involved encumbrance" clause under any Serviced Mortgage Loan, until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates; and PROVIDED, FURTHER, that, if the affected Serviced Mortgage Loan is a Mortgage Loan that (Loan, individually or together with all other Serviced Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten 10 largest Mortgage Loans then in the Trust, trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved__________, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a "due-on-encumbrance provision sale" clause under any Serviced Mortgage Loan until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates; and PROVIDED, FURTHER, that, subject to the related Mortgage Loan Documents and applicable law, the Master Servicer shall not waive any right it has, or grant any consent it is involvedotherwise entitled to withhold, thenin accordance with any related "due-on-sale" or "due-on-encumbrance" clause under any Serviced Mortgage Loan, or approve the assumption of any Serviced Mortgage Loan, until it has delivered to the Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and SECTION 3.24), which consent shall be deemed given if not denied in writing within ten Business Days of receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information requested by the Special Servicer or the Controlling Class Representative; and PROVIDED, FURTHER, that, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a "due-on-sale provision is involvedsale" or "due-on-encumbrance" clause under any Serviced Mortgage Loan, thenor approve the assumption of any Serviced Mortgage Loan, subject unless in any such case, all associated costs and expenses are covered without any expense to the related Mortgage Loan Documents Trust (it being understood and applicable lawagreed that, except as expressly provided herein, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses); and PROVIDED, FURTHER, that neither the Master Servicer nor the Special Servicer shall (with respect to a Specially Serviced Mortgage Loanthe extent that it is within the control thereof to prohibit such event) shall enter into such approval or waiver with respect consent to the transfer of any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) Borrower or (ii) either (x) in the case of the applicable Master Servicer, it has obtained obtains the consent of the applicable Special Servicer (pursuant to Controlling Class Representative, which consent shall be deemed given if not denied in writing within ten Business Days of receipt by the approval procedures described in clause (A) above) or (y) in Controlling Class Representative of written notice of such action and all reasonably requested information related thereto. In the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including , the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor and the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of each provide the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee with all such information as each may reasonably request in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause perform its duties under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) section. In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), . If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in a Borrower or a Mortgaged Property, then the Master Servicer or the Special Servicer, as applicable, will apply that fee to cover the costs and expenses associated with that transfer or proposed transfer that are not otherwise paid by the related Borrower and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses to the extent such fees and expenses are collectible under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, applicable law and the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting Servicer, as appropriate, fails to enforce such requirement in accordance with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents Documents. Any remaining portion of such assumption fee (such remaining portion, a "NET ASSUMPTION FEE") or of such assumption application fee (such remaining portion, a "NET ASSUMPTION APPLICATION FEE") will be applied as additional compensation to the Master Servicer or the Special Servicer in accordance with SECTION 3.11. Neither the Master Servicer nor the Special Servicer shall waive any assumption fee or assumption application fee, to the extent it would constitute additional compensation for the other such party, without the exercise consent of any lender approval or discretion such other than confirming the satisfaction of the other conditions party. If and to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided extent that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Mortgage Loan, approval of the lender is required in connection with the related Borrower's incurring unsecured debt in addition to (A) trade receivables, (B) equipment financing and (C) other debt incurred in the ordinary course of business, then the Master Servicer (if the subject Mortgage Loan is a Performing Serviced Mortgage Loan) or the Special Servicer (if the subject Mortgage Loan that is part a Specially Serviced Mortgage Loan), as applicable, shall refuse to approve such unsecured debt unless and until it has obtained (i) in the case of a the Master Servicer, the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and SECTION 3.24), which consent shall be deemed given if not denied in writing within 10 Business Days of receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information requested by the Special Servicer, and (ii) in each such case, if the subject Mortgage Loan Combinationhas an unpaid principal balance in excess of $__________, an analogous rating agency written confirmation from each Pari Passu Companion Rating AgencyAgency to the effect that the related Borrower's incurring such unsecured debt will not result in an Adverse Rating Event with respect to any Class of Rated Certificates; PROVIDED that neither the Master Servicer nor the Special Servicer shall be obligated to obtain any such ratings confirmation if, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan DocumentsDocuments and/or applicable law, which provisions shall it would not be waived by able either (i) to withhold its consent based upon the applicable Master Servicer, and, if not paid, failure of either Rating Agency to provide such costs shall be paid by and reimbursed ratings confirmation or (ii) to obtain payment from the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with related Borrower of the cost of obtaining such transfers of interest as Additional Master Servicing Compensationratings confirmation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc)
Enforcement of Alienation Clauses. (a) If If, with respect to any Performing Serviced Loan, the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits Master Servicer receives a request from a Mortgagor regarding the assignment transfer of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, Person or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of certain interests in such BorrowerMortgagor, then the Master Servicer shall promptly obtain relevant information for purposes of evaluating such request. If the Master Servicer determines, consistent with the Servicing Standard, to approve such transfer and/or assumption, then the Master Servicer shall promptly provide to the Special Servicer a written copy of such recommendation (which shall include the reason therefor) requests approval and the materials upon which such recommendation is based. The Special Servicer shall have the right hereunder, within 15 days of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer to reasonably withhold or grant consent to any such request for such an assignment transfer and/or assumption in accordance with the terms of the Mortgage Loan and assumption this Agreement, including, without limitation, the Servicing Standard; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d) and Section 6.11, and, further, to the Special Servicer obtaining any consent to the extent required pursuant to Section 6.11, if applicable. If the Special Servicer does not respond within such 15-day period, the Special Servicer's consent shall be deemed granted. If the Special Servicer consents or is deemed to have consented to such proposed transfer or enters into and/or assumption, then the Master Servicer (subject to Section 3.08(d) and Section 6.11) and shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Serviced Loan by, another Person, the Master Servicer shall be authorized to enter into an assumption or of interest(s) in such Borrower in violation of substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Mortgage Loan Documentsand substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Master Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or an Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or if on parity with, the provisions lien of the related Mortgage. The Master Servicer shall notify the Trustee, the Special Servicer, each Rating Agency and, in the case of a Loan Pair, the related Companion Loan Noteholder, of any Serviced assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement, together with copies of all relevant documentation. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan or shall be made without the assumption of all other Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Loan Combination expressly permits shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Mortgagor. If any Performing Serviced Loan contains restrictions on transfers of the related Mortgaged Property and/or transfers of interests in the related Mortgagor, and if any such proposed transfer has not been approved pursuant to the preceding paragraph, then the Master Servicer, on behalf of the Trustee (as mortgagee of record on behalf of the Certificateholders and, in the case of a Mortgaged Property relating to a Loan Pair, the related Companion Loan Noteholder) shall, to the extent permitted by applicable law, enforce such restrictions, unless the Master Servicer has determined, in its reasonable, good faith judgment that failure to waive such restrictions would be a violation of the Servicing Standard (as evidenced by an Officer's Certificate setting forth the basis for such determination delivered, together with copies of all relevant documentation, to the Trustee and each Rating Agency and, with respect to a Loan Pair, to the related Companion Loan Noteholder); provided that any such waiver of such restrictions shall be subject to Section 3.08(d).
(b) If, with respect to any Specially Serviced Loan, the Master Servicer receives a request for consent to the transfer of the related Mortgaged Property to, and assumption of such Loan, by another Person or transfers of certain interests in such Mortgagor, the Master Servicer shall immediately notify the Special Servicer of such request and deliver to the Special Servicer the Mortgage File (or a copy thereof) and such other documents that the Master Servicer shall have received regarding the proposed transfer and/or assumption; provided that the Master Servicer shall only be required to deliver the foregoing items to the extent in its possession and to the extent such items have not already been delivered to the Special Servicer. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Loan pursuant to this Section 3.08(b) with respect to any Specially Serviced Loan, the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or an Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the lien of the related Mortgage. The Special Servicer shall notify the Trustee, the Master Servicer, each Rating Agency and, with respect to a Loan Pair, the related Companion Loan Noteholders of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Loan shall be made unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Mortgagor.
(c) If, with respect to a Performing Serviced Loan, the Master Servicer receives a request from the Mortgagor regarding a further encumbrance of the related Mortgaged Property upon Property, then the satisfaction Master Servicer shall promptly obtain relevant information for purposes of specified conditionsevaluating such request. If the Master Servicer determines, prohibits consistent with the Servicing Standard, to approve such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect then the Master Servicer shall provide to the Special Servicer a Co-op Mortgage Loan as to written copy of such recommendation (which shall include the NCB, FSB Subordinate Debt Conditions have been satisfied, reason therefor) and the related Borrower requests approval materials upon which such recommendation is based. The Special Servicer shall have the right hereunder, within 15 days of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, to reasonably withhold or, subject to Section 3.08(d) and Section 6.11, grant consent to any such request for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan DocumentsMortgaged Property. If the Special Servicer does not respond within such 15-day period, the applicable Special Servicer's consent shall be deemed granted. If the Special Servicer consents or is deemed to have consented to such further encumbrance of the related Mortgaged Property, the Master Servicer shall process such request of the related Mortgagor. If the Special Servicer does not consent to, and is not deemed to have consented to, such further encumbrance, then the Master Servicer, on behalf of the Trustee (with respect to a Performing Serviced Mortgage Loan as mortgagee of record on behalf of the Certificateholders and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereofMortgaged Property that relates to a Loan Pair, the related Companion Loan Noteholder) and not shall, to the extent permitted by applicable law, enforce the restrictions contained in the related loan documents on further encumbrances of the related Mortgaged Property, unless the Master Servicer has determined, in its reasonable, good faith judgment, that failure to waive any such restrictions would be a violation of the relevant due-on-sale clause or due-on-encumbrance clause or Servicing Standard (ii) if in as evidenced by an Officer's Certificate setting forth the best economic interest of basis for such determination delivered to the Trust Trustee, the Special Servicer, each Rating Agency and, if applicablewith respect to a Loan Pair, any affected Serviced Pari Passu the related Companion Loan Holder(s) (as a collective wholeNoteholder), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all any such waiver of the following conditions and/or such restrictions shall apply:
(A) be subject to Section 3.08(c3.08(d). To the extent permitted by the applicable loan documents and applicable law, the applicable Master Servicer shall not enter into such may charge the related Mortgagor (and retain or share with the Special Servicer pursuant to Section 3.11) a fee in connection with any enforcement or waiver or approval for contemplated in this paragraph of subsection (c). With respect to any Performing Specially Serviced Mortgage Loan Loans, the Special Servicer on behalf of the Trustee (as mortgagee of record on behalf of the Certificateholders and, if applicablein the case of a Loan Pair Mortgaged Property, any the related Performing Serviced Pari Passu Companion LoanLoan Noteholders) shall, to the extent permitted by applicable law, enforce the restrictions contained in the related loan documents on further encumbrances of the related Mortgaged Property, and process all documentation in connection therewith, unless such Master the Special Servicer has obtained the consent determined, in its reasonable, good faith judgment, that waiver of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent restrictions would be in accordance with the Servicing Standard (and as evidenced by an Officer's Certificate setting forth the basis for such determination delivered to the Trustee, the Master Servicer, each Rating Agency and, with respect to a Loan Pair, the related Companion Loan Noteholder); provided that any such waiver of such restrictions shall be subject to Section 3.243.08(d) and Section 6.11. To the extent permitted by the applicable loan documents and applicable law, and/or the Special Servicer may charge the related Mortgagor (and retain to the extent permitted under Section 3.26 3.11) a fee in connection with any enforcement or waiver contemplated in this subsection (c).
(d) Notwithstanding anything to the contrary contained in this Section 3.08, (A) (i) if and as applicable)the then unpaid principal balance of the subject Mortgage Loan is at least equal to $20,000,000, then neither the Master Servicer (with respect to Performing Serviced Loans) nor the Special Servicer (with respect to Specially Serviced Mortgage Loans) shall waive any restrictions contained in the related Mortgage on transfers of the related Mortgaged Property or on transfers of interests in the related Mortgagor, and (3ii) if any such consent has not been expressly denied within fifteen (15w) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) then unpaid principal balance of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced subject Mortgage Loan is a at least equal to 2% of the then aggregate principal balance of the Mortgage Pool or (x) the subject Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is then one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, Mortgage Pool or if a Serviced Loan Combination is involved, then, subject to (y) the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio of the subject Mortgage Loan (including existing and proposed together with any additional debtloans that would further encumber the related Mortgaged Property or interest in the related Mortgagor) that is would be equal to or greater than 85% or (dz) has an the aggregate debt service coverage ratio of the related Mortgaged Property (including taking into account any additional loans that would further encumber the debt service on related Mortgaged Property or interest in the existing and proposed additional debtrelated Mortgagor) that is would be less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to then neither the Master Servicer nor the Special Servicer shall waive any restrictions contained in the related Mortgage Loan Documents and applicable lawon further encumbrances of the related Mortgaged Property, neither unless, in the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless case of either (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in above, the case of Special Servicer or the applicable Master Servicer, it has obtained as the consent case may be, shall have received prior written confirmation from S&P that such action would not result in an Adverse Rating Event, and (B) if the subject Mortgage Loan is then one of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) ten largest Mortgage Loans in the case of the applicable Special ServicerMortgage Pool, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, then neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny waive any restrictions contained in the related request;
(F) neither Mortgage on transfers or further encumbrances of the applicable related Mortgaged Property or on transfers of interests in the related Mortgagor, unless the Master Servicer (with respect to a Performing Serviced Mortgage Loan andor the Special Servicer, if applicableas the case may be, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any shall have received prior written confirmation from Moody's that such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that action would not result in an Adverse REMIC Event Rating Event. In connection with respect any request for rating confirmation from a Rating Agency pursuant to any REMIC Pool this Section 3.08(d), the Master Servicer or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoingcase may be, in no event will the applicable Master Servicer’s approval of an assignment shall deliver its written analysis and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer recommendation (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject ) with respect to the related Mortgage Loan Documents matters that are the subject thereof, and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled copies of all relevant supporting documentation to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatRating Agency. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject no waiver of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for restriction contained in the related Mortgage Loan Documents, which provisions shall not on transfers of the related Mortgaged Property or interests in the related Mortgagor or on further encumbrances thereof may be waived by the applicable Master Servicer or the Special Servicer, andas applicable, if unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Mortgagor. To the extent not paidcollected from the related Mortgagor, such costs any rating agency charges in connection with the foregoing shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master a Servicing CompensationAdvance.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Fund Corp Comm Mort Tr 2003-C1)
Enforcement of Alienation Clauses. The Master Servicer (awith respect to Performing Mortgage Loans) If and the provisions of any Special Servicer (with respect to Specially Serviced Mortgage Loan Loans), on behalf of the Trustee as the mortgagee of record, shall enforce any restrictions, contained in the related Mortgage or Serviced Loan Combination expressly permits the assignment other related loan document on transfers or further encumbrances of the related Mortgaged Property to, (other than the Crystal Pavilion/Xxxxx Building Mortgaged Property) and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerBorrower (other than the Borrower under the Crystal Pavilion/Xxxxx Building Mortgage Loan), unless the Master Servicer or the Special Servicer, as the case may be, has determined, in each case upon the satisfaction its reasonable, good faith judgment, that waiver of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent would be in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after Standard; provided that neither the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of nor the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to the applicable Master Servicer in order to make an informed decisionwithhold, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a under any related "due-on-sale provision encumbrance" clause until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates; and provided, further, that neither the Master Servicer nor the Special Servicer shall waive any right it has, or grant any consent it is involved and the affected Serviced otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates, if such "due-on-sale" clause involves any Mortgage Loan is a Mortgage Loan that (that, individually or together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000; and provided, or if a Serviced Loan Combination is involvedfurther, then, subject to that the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause until it has received the consent of the Special Servicer; and provided, further, that, subject to the related Mortgage Loan Documents and applicable law, neither the Master Servicer nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, pursuant to this paragraphor approve the assumption of any Mortgage Loan, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
Trust (bit being understood and agreed that, except as expressly provided herein, neither the Special Servicer nor the Master Servicer shall be obligated to cover or assume any such costs or expenses); and provided, further, that neither the Master Servicer nor the Special Servicer shall (to the extent that it is within the control thereof to prohibit such event) consent to the transfer of any Mortgaged Property which secures a Cross-Collateralized Group unless all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower. The Master Servicer and the Special Servicer shall each provide the other with all such information as each may reasonably request in order to make such determination and as to the Master Servicer, to obtain the Special Servicer's consent. In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination (other than the Crystal Pavilion/Xxxxx Building Loan) or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), . If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses to the extent provided for such fees and expenses are collectible under applicable law and the Master Servicer or the Special Servicer, as applicable, fails to enforce such requirement in the related accordance with such Mortgage Loan Documents. Any remaining portion of such assumption fee (such remaining portion, which provisions shall not a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed applied as additional compensation to the applicable Master Servicer as an Additional Trust Fund Expense)or the Special Servicer in accordance with Section 3.11. The applicable Neither the Master Servicer nor the Special Servicer shall be entitled waive any assumption fee or assumption application fee, to collect and receive from Borrowers any customary fees in connection with the extent it would constitute additional compensation for the other such transfers party, without the consent of interest as Additional Master Servicing Compensationsuch other party.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse Fr Bs Mor Sec Cp Com Mor Ps Th Ce Ser 2001-Ck1)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or As to each Serviced Loan Combination expressly permits that contains a provision in the assignment nature of a (i) "due-on-sale" clause (which includes, without limitation, sales or transfers of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, (in full or in part) or the transfers sale, transfer, pledge or hypothecation of interests direct or indirect interest in the related BorrowerBorrower or its owners), in each case which by its terms (1) provides that such Serviced Loan shall (or may at the mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Mortgagor; (2) provides that such Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice mortgagee or satisfaction of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, certain conditions in connection with any such approval sale or waiverother transfer, consent or agree to any modification, waiver or amendment of any term or provision of for so long as such Serviced Mortgage Loan that would result is included in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor the Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan Fund or (y)(a3) provides that such Serviced Loan may be assumed or transferred without the transaction is permitted under consent of the related Mortgage Loan Documents and (b) the mortgagee provided that certain conditions to the transaction that are set forth in the related Mortgage loan documents are satisfied, or (ii) as to each Serviced Loan Documents do not include that contains a provision in the approval nature of a "due-on-encumbrance" clause (including, without limitation, any mezzanine financing of the lender related Borrower or the exercise related Mortgaged Property or any sale or transfer of lender discretion preferred equity in such Borrower or its direct or indirect owners), that by its terms: (1) provides that such Serviced Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other than confirming the satisfaction of the other conditions to the transaction set forth in encumbrance on the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or Mortgaged Property; (2) requires the consent of the Mortgagee mortgagee or satisfaction of certain conditions to the creation of any such additional lien or other encumbrance on the related Mortgaged Property; or (3) provides that such Serviced Loan may be further encumbered provided that certain conditions set forth in order to incur subordinate debtthe loan documents have been satisfied, the NCB Master Special Servicer mayshall, neverthelesson behalf of the Trustee as the mortgagee of record, as to all Serviced Loans, exercise (or waive its right to exercise) any right it may have with respect to such Serviced Loan (x) to accelerate the payments thereon, (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without Standard or (z) determine whether the need to obtain any consent or approval hereunder conditions set forth in clause (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions a)(i)(3) of this paragraph have been met; provided that, subject satisfied. Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, the NCB Master Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause (including, but not limited to, making any determination that the conditions set forth in Section 3.08(a)(i)(3) and Section 3.08 (a)(ii)(3) have been satisfied), unless the Special Servicer shall have followed the procedures set forth for those Loans in the manner set forth in the immediately below clauses (i) through (iv):
(i) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Directing Certificateholder for (a) any Performing Serviced Loan or (b) for any Specially Serviced Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e-mail within ten Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(ii) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a), if any Mortgage Loan (other than with respect to any Non-Serviced Mortgage Loan, which is governed by the related Non-Serviced Loan Servicing Agreement):
(1) has a then outstanding principal balance of greater than $5,000,000 and represents greater than 5.0% of the then outstanding principal balance of the Mortgage Pool;
(2) has a then outstanding principal balance of greater than $35,000,000; or
(3) has a then outstanding principal balance of greater than $5,000,000 and is one of the ten largest Mortgage Loans in the Mortgage Pool based on the then outstanding principal balance of the Mortgage Pool, then the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(iii) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-encumbrance" clause as described in Section 3.08(a), if any Mortgage Loan (other than with respect to any Non-Serviced Mortgage Loan, which is governed by the related Non-Serviced Loan Servicing Agreement):
(1) represents greater than 2.0% of the then outstanding principal balance of the Mortgage Pool;
(2) is at the time one of the ten largest Mortgage Loans or Cross-Collateralized Set of Mortgage Loans by outstanding principal balance in the Mortgage Pool or has a then outstanding principal balance of greater than $20,000,000; or
(3) after taking into consideration any additional indebtedness secured by the related Mortgaged Property and any mezzanine debt, the loan-to-value ratio for such Mortgage Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-encumbrance" clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Set unless the Special Servicer shall have obtained written confirmation from each Rating Agency that such action shall not result in a qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates or Companion Loan Securities (if applicable).
(iv) In the event that the Special Servicer intends or is required, in accordance with the preceding clauses, by the loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Special Servicer may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Special Servicer if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Special Servicer shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in a Mortgagor or a Mortgaged Property, then the Master Servicer or the Special Servicer, as applicable, will apply that fee to cover the costs and expenses associated with that transfer or proposed transfer that are not otherwise paid by the related Borrower under Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a Performing Serviced Mortgage Loan "Net Assumption Fee") or related Serviced Pari Passu Companion Loanof such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the Master Servicer or the Special Servicer in accordance with Section 3.11.
(d) Notwithstanding anything herein to the contrary, the applicable Master Servicer shall have the right to grant its consent to the same approve and close, without the consent or approval of the applicable Special Servicer (Servicer, the Directing Certificateholder or the applicable Special Servicer interacting any Rating Agency, all initial syndications of tenant-in-common interests, provided such syndications are specifically permitted by and in accordance with the Subordinate Class Representative in connection with related loan documents for any Serviced Loan that is not a Specially Serviced Loan. Upon completion of any such applicable initial syndication, the Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions shall promptly provide notice by electronic mail thereof to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessSpecial Servicer, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if which notice shall also (i) advise the affected Serviced Mortgage Loan is or relates Special Servicer as to a Mortgage Loan that, together the total number of transfers with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known respect to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, that the Master Servicer has approved and closed as of such date and the expiration date (if any) by which such transfer(s) must occur pursuant to the related loan documents and (ii) advise the transfer is Special Servicer of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposeswhen, “control” when used with respect to any specified person means the power to direct the management and policies such Serviced Loan, such tenant-in-common syndication is complete. All transfers of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative a tenant-in-common interest subsequent to the foregoing), then initial syndication shall be processed and approved solely by the applicable Master Servicer shall not consent Special Servicer. Any request for a modification to or extension of the final initial syndication date respecting any such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, tenant-in-common transfers or increase in the case permitted number of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (tenant-in-common interests under the costs of which are to initial syndication shall be payable processed and approved solely by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Special Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2008-Ls1)
Enforcement of Alienation Clauses. (a) If the provisions Upon receipt of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (a waiver in the case respect of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause (including, without limitation, a sale of a Mortgaged Property (in full or in part) or a sale, transfer, pledge or hypothecation of direct or indirect interests in a Mortgagor or its owners) or due-on-encumbrance clause (including, without limitation, any mezzanine financing of a Mortgagor or (iia Mortgaged Property or a sale or transfer of preferred equity in a Mortgagor or its owners) provision with respect to a Serviced Mortgage Loan or a request by a Mortgagor for a determination with respect to a Serviced Mortgage Loan which by its terms permits transfer, assumption or further encumbrance without lender consent upon the satisfaction of certain conditions, that such conditions have been satisfied, the applicable Master Servicer shall promptly forward such request to the Special Servicer, who, if otherwise permitted pursuant to this Agreement, shall analyze such request, shall prepare all written materials in connection with such analysis, and shall, if it approves such request in accordance with the best economic interest of Servicing Standard, close the Trust andrelated transaction, subject to Section 6.11 and Section 6.12, in each case as and if applicable, and any affected applicable intercreditor, co-lender or similar agreement; provided that, if the subject Serviced Pari Passu Companion Mortgage Loan Holder(s) is a PNC Trust Mortgage Loan that is not a Specially Serviced Trust Mortgage Loan and Midland is acting as Master Servicer No. 2 hereunder, then Master Servicer No. 2 shall handle requests for waivers or determinations in connection with a proposed transfer, assumption or further encumbrance (as a collective whole), approve the request or provided that neither Master Servicer No. 2 nor any Sub-Servicer on its behalf may waive the effect of the any due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject provision or consent to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained assumption without the consent of the Special Servicer). With respect to all Serviced Mortgage Loans, the Special Servicer, on behalf of the Trustee as the mortgagee of record (or, in the case of a B-Note Non-Trust Mortgage Loan, on behalf of the related B-Noteholder), shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers of interests in the related Mortgagor, unless the Special Servicer (it being understood and agreed that (1) the applicable or Master Servicer shall promptly provide No. 2, in the applicable Special case of a PNC Trust Mortgage Loan that is not a Specially Serviced Trust Mortgage Loan, so long as Midland is acting as Master Servicer with No. 2 hereunder), (xafter providing the Controlling Class Representative or other appropriate party ten (10) written Business Days' prior notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject proposed action pursuant to Section 3.246.11 and Section 6.12, and/or Section 3.26 in each case if and as applicable), and (3) if any has determined, consistent with the Servicing Standard, that waiver of such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days restrictions would be in accordance with the Servicing Standard. Promptly after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andor, if applicable, Master Servicer No. 2 (after providing the Controlling Class Representative or other appropriate party ten (10) Business Days' prior notice of such proposed action pursuant to Section 6.11 and Section 6.12, in each case if and as applicable) has made any related Performing Serviced Pari Passu Companion Loan) nor such determination, such servicer shall deliver to the applicable Trustee, the Rating Agencies and each other party hereto an Officer's Certificate setting forth the basis for such determination. None of Master Servicer No. 2, the Special Servicer or a Sub-Servicer on behalf of either of them shall exercise (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and or, in the case of a Serviced Loan Combinationthe Special Servicer, the equivalent confirmation from each Pari Passu Companion Rating Agency with consent to Master Servicer No. 2 exercising) any such waiver in respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related of any Serviced Trust Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (i) with respect to a Performing Serviced which the aggregate of the Stated Principal Balance of such Trust Mortgage Loan andand the Stated Principal Balance of all other Trust Mortgage Loans that are cross-collateralized with, if applicablecross-defaulted with or have been made to Mortgagors affiliated with the Mortgagor on such Trust Mortgage Loan, any related Performing Serviced Pari Passu Companion Loanis equal to or in excess of $20,000,000, (ii) nor the applicable Special Servicer (with respect to a Specially Serviced which the 139 aggregate of the Stated Principal Balance of such Trust Mortgage Loan and the Stated Principal Balance of all other Trust Mortgage Loans that are cross-collateralized with, cross-defaulted with or have been made to Mortgagors affiliated with the Mortgagor on such Trust Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2, are greater than 5% or more of the then-aggregate principal balance Stated Principal Balance of all of the Trust Mortgage Loans then in the Trust Fund, or (biii) is one of the ten (10) largest Trust Mortgage Loans as of the date of the waiver (by Stated Principal Balance), without receiving prior written confirmation from each Rating Agency that such action would not result in a downgrading, qualification or withdrawal of the ratings then assigned by it to the Certificates. In addition, none of Master Servicer No. 2, the Special Servicer or a Sub-Servicer on behalf of either of them shall waive (or, in the Trust Fund by principal balancecase of the Special Servicer, (cconsent to Master Servicer No. 2 waiving) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a any due-on-sale provision of any Serviced Trust Mortgage Loan with respect to which (i) the aggregate of the Stated Principal Balance of such Trust Mortgage Loan and the Stated Principal Balance of all other Trust Mortgage Loans that are cross-collateralized with, cross-defaulted with or have been made to Mortgagors affiliated with the Mortgagor on such Trust Mortgage Loan, is involvedequal to or in excess of $35,000,000 (or $20,000,000 with respect to Xxxxx'x), then(ii) the aggregate of the Stated Principal Balance of such Trust Mortgage Loan and the Stated Principal Balance of all other Trust Mortgage Loans that are cross-collateralized with, cross-defaulted with or have been made to Mortgagors affiliated with the Mortgagor on such Trust Mortgage Loan, are greater than 5% of the aggregate Stated Principal Balance of all Trust Mortgage Loans or (iii) such Trust Mortgage Loan is one of the ten (10) largest Trust Mortgage Loans as of the date of the waiver (by Stated Principal Balance), without receiving prior written confirmation from each Rating Agency that such action would not result in a downgrading, qualification or withdrawal of the ratings then assigned by it to the Certificates. If a Trust Mortgage Loan does not meet the criteria set forth in clause (i), (ii) or (iii) of the preceding sentence or clause (i), (ii) or (iii) of the second preceding sentence, if and as applicable, then the Special Servicer (or Master Servicer No. 2, in the case of a PNC Trust Mortgage Loan that is not a Specially Serviced Trust Mortgage Loan, so long as Midland is acting as Master Servicer No. 2 hereunder) may waive the subject requirement without approval by each Rating Agency in accordance with the Servicing Standard. Any fees charged by the Rating Agencies in connection with obtaining any written rating confirmation contemplated above in this paragraph shall be charged to the Mortgagor unless prohibited by the related loan documents, in which case such fees shall be Additional Trust Fund Expenses paid out of the Collection Account (or, in the case of an A/B Loan Combination, shall be paid out of the related A/B Custodial Account), to the extent that the related Mortgage Loan Documents and applicable lawSeller has not paid such fees, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special ServicerMortgage Loan Purchase Agreement, it has obtained the consent of the Subordinate Class Representativeprovided that, if and to the extent required under Sections 3.24 and/or Section 3.26that any such Rating Agency fees paid would result in the failure of any one or more Holder(s) of Regular Certificates to receive any amount of principal or interest at the related Pass-Through Rate to which such Holder(s) are entitled (in each case by the time any such amounts are due and payable to such Holder(s)), then such amounts shall be deemed to have been distributed to such Holder(s) from REMIC II, as applicable);
(Eof the time paid and then paid by such Holder(s) subject to and not by any REMIC Pool. If the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (Master Servicer No. 2, in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced PNC Trust Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to that is not a Specially Serviced Trust Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, so long as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Midland is acting as Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretionNo. 2 hereunder). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need determines with respect to obtain any consent Serviced Mortgage Loan that by its terms permits transfer, assumption or approval hereunder (and without the need to obtain further encumbrance of a Rating Agency Confirmation), permit Serviced Mortgage Loan or the related Borrower Mortgaged Property, as applicable, without lender consent upon the satisfaction of certain conditions, that such conditions have not been satisfied, then neither the applicable Master Servicer nor any Sub-Servicer on its behalf may permit such transfer, assumption or further encumbrance. Notwithstanding the foregoing, if Master Servicer No. 2 (if and when permitted above) rejects a Mortgagor's request in connection with a "due-on-sale" or "due-on- 140 encumbrance" clause under a Serviced Mortgage Loan as to incur subordinate debt if which it is reviewing such request in the NCBcircumstances specified above in this paragraph, FSB Subordinate Debt Conditions have been met; provided thatthe Special Servicer will be given the opportunity to review and, subject to the related Mortgage Loan Documents provisions of this paragraph regarding "due-on-sale" and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” clause under any Mortgage Loan" clauses, pursuant determine whether to approve such Mortgagor's request. As used in this paragraph, unless the terms "sale", "transfer" and "encumbrance" include the matters contemplated by the parentheticals in the first sentence of this paragraph. None of the Master Servicers, the Special Servicer or a Sub-Servicer on behalf of any such case, all associated costs and expenses are covered without of them has the authority to perform any expense of the actions set forth above in this paragraph with respect to the TrustOutside Serviced Trust Mortgage Loan. Each request for rating confirmation contemplated by the foregoing paragraph shall be accompanied by a recommendation of whether to waive the subject restrictions and an analysis supporting such recommendation.
(b) In If a Master Servicer or Special Servicer, as applicable, consents subsequent to the Closing Date to the incurrence by the principal(s) of a Mortgagor under a Serviced Mortgage Loan of mezzanine financing in accordance with the related loan documents and enters into an intercreditor agreement, such servicer (to the extent it is permitted to do so under the related loan documents and applicable law and in accordance with the Servicing Standard) shall use reasonable efforts to require the related mezzanine lender to agree to pay a Liquidation Fee in connection with any permitted assumption of any purchase right that arises upon a Serviced Mortgage Loan or Serviced Loan Combination or waiver default in the event such purchase occurs after the expiration of a “60 days from the date the right to purchase arises under such mezzanine intercreditor agreement. The foregoing sentence shall not operate to modify the provisions of the preceding paragraph of this Section 3.08(a) regarding due-on-sale” or “sale and due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documentsencumbrance provisions.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2006-C5)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall immediately notify the Special Servicer of such request, shall evaluate (consistent with the Servicing Standard) the experience and financial condition of the proposed transferee and the status of any conditions to transfer or assumption (as described above) and prepare a report in connection therewith and shall deliver to the Special Servicer such report and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder, within 15 days (or, in the case of a consent to a determination as to whether the conditions precedent to the subject transfer or assumption have been satisfied, within 10 days) of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, in accordance with the Servicing Standard, to withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Serviced Mortgage Loan and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer and/or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then, in each such case, the Special Servicer shall notify the Master Servicer in writing of such determination, and the Master Servicer shall notify the related Mortgagor that the requested transfer and/or assumption will not be permitted and shall restrict the requested transfer and/or assumption of the subject Performing Serviced Mortgage Loan in accordance with the Servicing Standard. If the Special Servicer consents to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits and substitute as obligor thereunder the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage Loan DocumentsMortgage. The Master Servicer shall notify the Trustee, the applicable Master Servicer (with respect to Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan Noteholder(s) and, if in the case of a Split Trust Mortgage Loan, the Class FTH Representative or the Class NBT Representative, as applicable, of any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the terms of the related Performing loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Pari Passu Companion LoanTrust Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Mortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall immediately notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Serviced Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected no assumption of a Serviced Mortgage Loan is or relates to a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C3)
Enforcement of Alienation Clauses. (a) If In the event that the Master Servicer receives a request from a Mortgagor pursuant to the provisions of any Serviced Mortgage Loan or Performing Serviced Loan Combination that expressly permits permit, with the assignment lender's consent, subject to the conditions described in the loan documents, the transfer of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, Person or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of certain interests in such BorrowerMortgagor, the Master Servicer shall promptly obtain relevant information for purposes of evaluating such request. If the Master Servicer recommends to approve such transfer and/or assumption, the Master Servicer shall promptly provide to the Special Servicer a copy of such recommendation (which shall include the reason therefor) requests approval and the materials upon which such recommendation is based. The Special Servicer shall have the right hereunder, within 15 days of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, to reasonably withhold or, subject to Section 3.08(d), Section 6.11 and Section 6.11A, grant consent to any such request for such an assignment transfer and/or assumption in accordance with the terms of the Loan and assumption this Agreement, including, without limitation, the Servicing Standard. If the Special Servicer does not respond within such 15-day period, the Special Servicer's consent shall be deemed granted. If the Special Servicer consents or is deemed to have consented to such proposed transfer or enters into and/or assumption, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Loan by, another Person, the Master Servicer shall be authorized to enter into an assumption or of interest(s) in such Borrower in violation of substitution agreement with the related Mortgage Loan DocumentsPerson, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of which shall be a Single Purpose Entity, to whom the related Mortgaged Property upon has been or is proposed to be conveyed and/or release the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and original Mortgagor from liability under the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of Loan and substitute as obligor thereunder the Person to whom the related Mortgage Loan DocumentsMortgaged Property has been or is proposed to be conveyed; provided, however, that the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and agreement to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, that any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that terms thereof would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) aboveor create any lien on a Mortgaged Property that is senior to, or itself enter into such an approval or waiveron parity with, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval lien of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion)Mortgage. Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB The Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to notify the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunderTrustee, the applicable Master Servicer (Special Servicer, each Rating Agency and, in the case of a Performing Serviced Mortgage Loanthe _______________ Loan Pair, the _______________ Companion Loan Noteholder, of any assumption or substitution agreement executed pursuant to this Section 3.08(a) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery forward thereto a copy of such documents.
(c) Notwithstanding Section 3.08(a), in connection agreement together with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right Review Package. Subject to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected Serviced Mortgage no assumption of a Loan is shall be made or relates to transfer of interest in a Mortgage Loan thatMortgagor approved, together with unless all other Mortgage Loanscosts in connection therewith, if anyincluding any arising from seeking Rating Agency confirmation, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (paid by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Mortgagor.
(b) Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to a transfer and assumption referred to in subsection (a) above, if any specified person means Mortgage (other than the power to direct Mortgage under the management and policies _______________ Mortgage Loan) contains restrictions on transfers of such person, directly or indirectly, whether through the ownership related Mortgaged Property (other than the _______________ Mortgaged Property) and/or transfers of voting securities, by contract or otherwise and interests in the terms “controlling” and “controlled” have meanings correlative to the foregoing)related Mortgagor, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is Special Servicer, on behalf of the subject Trustee (as mortgagee of a Rating Agency Confirmation (subject to Section 3.27) (record on behalf of the Certificateholders and, in the case of any applicable Serviced Mortgage the _______________ Mortgaged Property, the _______________ Companion Loan that is part of a Loan CombinationNoteholder), an analogous rating agency confirmation from each Pari Passu Companion Rating Agencyand not the Master Servicer, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower shall, to the extent provided permitted by applicable law, enforce such restrictions, unless the Special Servicer has determined, in its reasonable, good faith judgment, that waiver of such restrictions would be in accordance with the Servicing Standard (as evidenced by an Officer's Certificate setting forth the basis for such determination delivered, together with a Review Package in respect thereof, to the related Mortgage Loan DocumentsTrustee, which provisions shall not be waived by the applicable Master Servicer, each Rating Agency and, if not paid, such costs shall be paid by and reimbursed with respect to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation._______________ Loan
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Securities Corp Ii)
Enforcement of Alienation Clauses. (a) If the provisions Upon receipt of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (a waiver in the case respect of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause (including, without limitation, a sale of a Mortgaged Property (in full or in part) or a sale, transfer, pledge or hypothecation of direct or indirect interests in a Mortgagor or its owners) or due-on-encumbrance clause (including, without limitation, any mezzanine financing of a Mortgagor or (iia Mortgaged Property or a sale or transfer of preferred equity in a Mortgagor or its owners) provision with respect to a Serviced Loan or a request by a Mortgagor for a determination with respect to a Serviced Loan which by its terms permits transfer, assumption or further encumbrance without lender consent upon the satisfaction of certain conditions, that such conditions have been satisfied, the Master Servicer shall promptly forward such request to the Special Servicer, who, if otherwise permitted pursuant to this Agreement, shall analyze such request, shall prepare all written materials in connection with such analysis, and shall, if it approves such request in accordance with the best economic interest of Servicing Standard, close the Trust andrelated transaction, subject to Section 6.11, Section 6.12, Section 6.13 and Section 6.14, in each case as and if applicable, and any affected applicable intercreditor, co-lender or similar agreement; provided that, if the subject Serviced Pari Passu Companion Loan Holder(s) (is a [___________] Mortgage Loan and [_____________________________] is acting as the Master Servicer hereunder, or if the subject Serviced Loan is a collective whole), approve the request or waive the effect [___________] Mortgage Loan and [_____________________________] is acting as Sub-Servicer with respect thereto on behalf of the Master Servicer, then the Master Servicer shall handle requests for waivers or determinations in connection with a proposed transfer, assumption or further encumbrance (provided that neither the Master Servicer nor any Sub-Servicer on its behalf may waive any due-on-sale or due-on-encumbrance clause; provided that all provision or consent to any assumption without the consent of the following conditions and/or restrictions shall apply:
Special Servicer). With respect to all Serviced Loans, the Special Servicer, on behalf of the Trustee as the mortgagee of record (A) subject to Section 3.08(cor, in the case of a B-Note Loan, on behalf of the related B-Noteholder), shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers of interests in the related Mortgagor, unless the Special Servicer (or the Master Servicer, both in the case of a [__________] Mortgage Loan that is not a Specially Serviced Mortgage Loan, so long as [___________________________] is acting as the Master Servicer shall hereunder, and in the case of a [__________] Mortgage Loan that is not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan andLoan, so long as [_____________________________] is acting as Sub-Servicer with respect thereto on behalf of the Master Servicer) (or, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained Servicer) (after providing the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written Controlling Class Representative or other appropriate party ten Business Days' prior notice of any Borrower request for such assignment proposed action pursuant to Section 6.11, Section 6.12, Section 6.13 and assumption or Section 6.14, in each case, if and as applicable, which notice shall be given by such encumbranceservicer no later than three Business Days after receipt of such request) has determined, (y) consistent with the applicable Master Servicer’s written recommendations and analysisServicing Standard, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any waiver of such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent restrictions would be in accordance with the Servicing Standard Standard. Promptly after the Special Servicer (and subject after providing the Controlling Class Representative or other appropriate party ten Business Days' prior notice of such proposed action pursuant to Section 3.246.11, and/or Section 3.26 6.12, Section 6.13 and Section 6.14, in each case, if and as applicable), which notice shall be given by the Special Servicer (or the Master Servicer, both in the case of a [__________] Mortgage Loan that is not a Specially Serviced Mortgage Loan, so long as [_____________________________] is acting as the Master Servicer hereunder, and (3in the case of a [__________] Mortgage Loan that is not a Specially Serviced Mortgage Loan, so long as [_____________________________] is acting as Sub-Servicer with respect thereto on behalf of the Master Servicer) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) no later than three Business Days after receipt of such request) has made any such determination, such servicer shall deliver to the time period provided Trustee, the Rating Agencies and each other party hereto an Officer's Certificate setting forth the basis for such determination. None of the Master Servicer, the Special Servicer or a Sub-Servicer on behalf of either of them shall exercise (or, in the related Intercreditor Agreement) case of the applicable Special Servicer’s receipt from , consent to the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer exercising) any such waiver in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver respect of a due-on-sale encumbrance provision is involved of any Serviced Loan (i) with respect to which (A) the aggregate of the Stated Principal Balance of such Mortgage Loan and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with Stated Principal Balance of all other Mortgage Loans, if any, Loans that are cross-collateralized with, cross-defaulted with or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, is equal to or in excess of $20,000,000, (B) the same Cross-Collateralized Group as aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized with, cross-defaulted with or have been made to Mortgagors affiliated with the same Borrower as Mortgagor on such Mortgage Loan, are greater than 2% (or, with respect to Xxxxx'x, 5%) of the aggregate Stated Principal Balance of all Mortgage Loans or (C) such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans as of the date of the waiver (by Stated Principal Balance), without receiving prior written confirmation from Xxxxx'x that such action would not result in a downgrading, qualification or withdrawal of the ratings then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject assigned by it to the related Mortgage Loan Documents Certificates and applicable law, neither the applicable Master Servicer (ii) with respect to a Performing Serviced which (A) the criteria set forth in clause (i)(A), (i)(B) and (i)(C) of this sentence have been met or (B) such Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion has a Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio Value Ratio (including existing and proposed calculated to include the additional debtindebtedness secured by any encumbrance) that is equal to or greater than 85% and a Debt Service Coverage Ratio (calculated to include the additional debt from any encumbrance) of 1.2x or (d) has an aggregate debt service coverage ratio (including less, without receiving a prior written confirmation from S&P that such action would not result in a downgrading, qualification or withdrawal of the debt service on ratings then assigned by it to the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or Certificates. With respect to a waiver of a due-on-sale provision is involvedof any Serviced Loan, thennone of the Master Servicer, subject the Special Servicer or a Sub-Servicer on behalf of either of them shall waive (or, in the case of the Special Servicer, consent to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (waiving) any such restriction with respect to a Performing Serviced which (i) the aggregate of the Stated Principal Balance of such Mortgage Loan andand the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized with, cross-defaulted with or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, is equal to or in excess of $35,000,000 (or $20,000,000 with respect to Xxxxx'x), (ii) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized with, cross-defaulted with or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, are greater than 5% of the aggregate Stated Principal Balance of all Mortgage Loans or (iii) such Mortgage Loan is one of the ten largest Mortgage Loans as of the date of the waiver (by Stated Principal Balance), without receiving prior written confirmation from S&P and Xxxxx'x that such action would not result in a downgrading, qualification or withdrawal of the ratings then assigned to the Certificates; provided that, if applicablethe Mortgage Loan does not meet the criteria set forth in clauses (i), any related Performing Serviced Pari Passu Companion Loan(ii) nor and (iii) of this sentence, the applicable Special Servicer (with respect to or the Master Servicer, both in the case of a [__________] Mortgage Loan that is not a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of , so long as [_____________________________] is acting as the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) Master Servicer hereunder, and in the case of a [__________] Mortgage Loan that is not a Specially Serviced Mortgage Loan, so long as [_____________________________] is acting as Sub-Servicer with respect thereto on behalf of the applicable Master Servicer) may waive such requirement without approval by S&P or Xxxxx'x in accordance with the Servicing Standard. Any fees charged by the Rating Agencies in connection with obtaining any written confirmation contemplated in the two preceding sentences shall be charged to the Mortgagor unless prohibited by the related Serviced Loan documents, it has obtained the consent in which case such fees shall be Additional Trust Fund Expenses paid out of the applicable Special Servicer Certificate Account (pursuant to the approval procedures described in clause (A) above) or (y) or, in the case of an A/B Loan Combination, shall be paid out of the related A/B Custodial Account), to the extent that the related Mortgage Loan Seller has not paid such fees, pursuant to the applicable Special ServicerMortgage Loan Purchase Agreement, it has obtained the consent of the Subordinate Class Representativeprovided that, if and to the extent required under Sections 3.24 that any such Rating Agency fees paid would result in the failure of any one or more Holder(s) of Regular Certificates and/or Section 3.26Class A-2FL Certificates to receive any amount of principal or interest at the related Pass-Through Rate to which such Holder(s) are entitled (in each case by the time any such amounts are due and payable to such Holder(s)), then such amounts shall be deemed to have been distributed to such Holder(s) from REMIC II, as applicable);
(Eof the time paid and then paid by such Xxxxxx(s) subject to and not by any REMIC Pool. If the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to or the Master Servicer, both in the case of a [__________] Mortgage Loan that is not a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs , so long as [_____________________________] is acting as the Master Servicer hereunder, and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced [__________] Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to that is not a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event so long as [_____________________________] is acting as Sub-Servicer with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to thereto on behalf of the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need determines with respect to obtain any consent Serviced Loan that by its terms permits transfer, assumption or approval hereunder (and without the need to obtain further encumbrance of a Rating Agency Confirmation), permit Serviced Loan or the related Borrower to incur subordinate debt Mortgaged Property, as applicable, without lender consent upon the satisfaction of certain conditions, that such conditions have not been satisfied, then neither the Master Servicer nor any Sub-Servicer on its behalf may permit such transfer, assumption or further encumbrance. Notwithstanding the foregoing, if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, a Sub-Servicer on its behalf rejects a Xxxxxxxxx's request in accordance connection with any related “a "due-on-sale" or "due-on-encumbrance” " clause under any Mortgage Loan, pursuant a Serviced Loan as to which it is reviewing such request in the circumstances specified above in this paragraph, unless in any such casethe Special Servicer will be given the opportunity to review and, all associated costs and expenses are covered without any expense subject to the Trustprovisions of this paragraph regarding "due-on-sale" and "due-on-encumbrance" clauses, determine whether to approve such Xxxxxxxxx's request. As used in this paragraph, the terms "sale", "transfer" and "encumbrance" include the matters contemplated by the parentheticals in the first sentence of this paragraph. None of the Master Servicer, the Special Servicer or a Sub-Servicer on behalf of either of them has the authority to perform any of the actions set forth above in this paragraph with respect to the Outside Serviced Mortgage Loan.
(b) In If the Master Servicer or Special Servicer, as applicable, consents subsequent to the Closing Date to the incurrence by the principal(s) of a Mortgagor under a Serviced Loan of mezzanine financing in accordance with the related loan documents and enters into an intercreditor agreement, such servicer (to the extent it is permitted to do so under the related loan documents and applicable law and in accordance with the Servicing Standard) shall use reasonable efforts to require the related mezzanine lender to agree to pay a Liquidation Fee in connection with any permitted assumption of any Serviced Mortgage Loan or purchase right that arises upon a Serviced Loan Combination or waiver default in the event such purchase occurs after the expiration of a “60 days from the date the right to purchase arises under such mezzanine intercreditor agreement. The foregoing sentence shall not operate to modify the provisions of the preceding paragraph of this Section 3.08(a) regarding due-on-sale” or “sale and due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documentsencumbrance provisions.
(c) Notwithstanding any other provisions of this Section 3.08(a)3.08, in connection the Master Servicer (with any transfer respect to Mortgage Loans, exclusive of an interest in the related Borrower under a Performing Outside Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same that are not Specially Serviced Loans (without the consent Special Servicer's consent) or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management Specially Serviced Mortgage Loans and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoingAdministered REO Properties), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a without any Rating Agency Confirmation confirmation as provided in subsection (subject to Section 3.27a) above, may grant a Mortgagor's request for consent (andor, in the case of any applicable Serviced an Administered REO Property, may consent) to subject the related Mortgaged Property to an easement or right-of-way for utilities, access, parking, public improvements or another purpose, and may consent to subordination of the subject Mortgage Loan to such easement or right-of-way, provided that is part the Master Servicer or the Special Servicer, as applicable, shall have determined in accordance with the Servicing Standard that such easement or right-of-way shall not materially interfere with the then-current use of a Loan Combinationthe related Mortgaged Property, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are security intended to be payable provided by such Mortgage or the related Borrower Mortgagor's ability to repay the extent provided for subject Mortgage Loan, and will not materially or adversely affect the value of such Mortgaged Property and that the granting of such consent would not result in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationAdverse REMIC Event.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Securities Inc)
Enforcement of Alienation Clauses. (a) If If, with respect to any Performing Mortgage Loan, the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits Master Servicer receives a request from a Mortgagor regarding the assignment transfer of the related Mortgaged Property to, and assumption of such Performing Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall immediately notify the Special Servicer of such request, perform an underwriting analysis in connection therewith and deliver to the Special Servicer such underwriting analysis and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder to, in accordance with the Servicing Standard, withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Mortgage Loan and/or (ii) determines, with respect to any Performing Mortgage Loan that by its terms permits transfer or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then in either case the Master Servicer shall not permit the requested transfer or assumption of such Performing Mortgage Loan. If the Special Servicer consents to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Performing Mortgage Loan Documents, or if and substitute as obligor thereunder the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage. The Master Servicer shall notify the Trustee, the Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Loan Combination that consists of Performing Mortgage Loans, the related Non-Trust Mortgage Loan DocumentsNoteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the applicable Master Servicer (with respect to terms of the related loan documents, no assumption of a Performing Serviced Cross-Collateralized Mortgage Loan andshall be made without the assumption of all other Trust Mortgage Loans making up the related Cross-Collateralized Group. Further, if applicablesubject to the terms of the related loan documents and applicable law, no assumption of a Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Performing Serviced Pari Passu Companion LoanMortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall immediately notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Loan Combination, the related Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to no assumption of a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C1)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion that is a Pooled Mortgage Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer (and, if a Serviced Mortgage Loan Group is involved, to the related Serviced Mortgage Loan Group Controlling Party) with (x) written notice of any Borrower request for such assignment and assumption or such encumbranceassumption, (y) the applicable Master Servicer’s written 's recommendations and analysis, and (z) with all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.243.24 and/or 3.27, and/or Section 3.26 if and as applicable), and (3) except with respect to any Nationwide Pooled Mortgage Loan, PCF Pooled Mortgage Loan or PCFII Pooled Mortgage Loan, if any such consent has not been expressly denied within fifteen (15) seven Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s 's receipt from the applicable Master Servicer of the applicable such Master Servicer’s written 's recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted, and (4) solely with respect to any PCF Pooled Mortgage Loan, PCFII Pooled Mortgage Loan or any Nationwide Pooled Mortgage Loan, any such consent shall be deemed to have been granted if such consent has not been expressly denied either (x) within ten Business Days of the Special Servicer's receipt of the applicable Master Servicer's recommendations and analysis, if the Special Servicer has not requested additional information as described above on or before the date that is four Business Days following the Special Servicer's initial receipt of the applicable Master Servicer's recommendations and analysis, or (y) within six Business Days following the Special Servicer's receipt of the additional information requested by the Special Servicer as described above, if the Special Servicer has requested such additional information on or before the date that is four Business Days following the Special Servicer's initial receipt of the applicable Master Servicer's recommendations and analysis);
(B1) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Pooled Mortgage Loan that (together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan) is one of the ten largest Pooled Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Pooled Mortgage Loan and, if applicable, any related Performing other than a Specially Serviced Pari Passu Companion Pooled Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates and (2) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Serviced Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the Special Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) unless and in the case of a Serviced Loan Combination, the equivalent until it has received written confirmation from each Pari Passu Companion applicable Rating Agency with respect to for the related Serviced Non-Pooled Pari Passu Companion Loan Securities; andSecurities that such action would not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(C1) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation that such approval or waiver is the subject action would not result in an Adverse Rating Event with respect to any Class of a Rated Certificates from each Rating Agency Confirmation (subject Agency, with respect to Section 3.27) if the related any Serviced Pooled Mortgage Loan that (a) represents 2% or more of the then-then aggregate principal balance of all of the Pooled Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Pooled Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x1.2x and (2) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved and the affected Serviced Mortgage Loan is a Serviced Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the Special Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities that such action would not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable a Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Controlling Class RepresentativeRepresentative and/or the related Serviced Mortgage Loan Group Controlling Party, if and to the extent required under Sections 3.24 and/or Section 3.263.27, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any confirmation(s) of the absence of an Adverse Rating Agency ConfirmationEvent) are covered without any expense to the Trust or (in the case of a Serviced Mortgage Loan CombinationGroup) any expense to any related Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an any Adverse Grantor Trust Event with respect to the any Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable a Master Servicer’s 's recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section Sections 3.24 and/or Section 3.263.27, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s 's approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer if (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretionexercise). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the The applicable Master Servicer shall have the right to grant its consent to any transfers of an interest in the same without Borrower under a Performing Serviced Mortgage Loan, to the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if extent such transfer is allowed under the terms of the related Mortgage Loan Documents (without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion), including a any consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Pooled Mortgage Loan that, together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan, has a Stated Principal Balance that equals or exceeds 5% of the then aggregate Stated Principal Balance of the Mortgage Pool or is one of the then-then current top ten Pooled Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, Pool or has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)%, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a it has received written confirmation from each Rating Agency Confirmation that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense); provided, further, however, that, subject to Section 3.27the terms of the related Mortgage Loan Documents and applicable law, if (i) (and, in the case of any applicable matter involves a Serviced Mortgage Loan Group that includes one or more Serviced Non-Pooled Pari Passu Companion Loans and (ii) the transfer is part of a Loan Combinationan interest in the Borrower greater than 49%, an analogous rating agency then the applicable Master Servicer shall not consent to such transfer unless and until it has received written confirmation from each Rating Agency for the Rated Certificates that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates rated by such Rating Agency and also a written confirmation from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities that such action would not result in an Adverse Rating Agency, if applicable pursuant Event with respect to Section 3.27(k)) any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr11)
Enforcement of Alienation Clauses. (a) If If, with respect to any Performing Mortgage Loan, the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits Master Servicer receives a request from a Mortgagor regarding the assignment transfer of the related Mortgaged Property to, and assumption of such Performing Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall immediately notify the Special Servicer of such request, perform an underwriting analysis in connection therewith and deliver to the Special Servicer such underwriting analysis and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder to, in accordance with the Servicing Standard, withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Mortgage Loan and/or (ii) determines, with respect to any Performing Mortgage Loan that by its terms permits transfer or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then in either case the Master Servicer shall not permit the requested transfer or assumption of such Performing Mortgage Loan. If the Special Servicer consents to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Performing Mortgage Loan Documents, or if and substitute as obligor thereunder the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage. The Master Servicer shall notify the Trustee, the Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Loan Combination that consists of Performing Mortgage Loans, the related Non-Trust Mortgage Loan DocumentsNoteholder(s), and, in the case of each of the 000 Xxxx Xxxxxx Trust Mortgage Loan and the Courtyard by Marriott Trust Mortgage Loan, the applicable Master Servicer (related Directing Certificateholder, of any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with respect a Review Package. Subject to the terms of the related loan documents, no assumption of a Performing Serviced Cross-Collateralized Mortgage Loan andshall be made without the assumption of all other Trust Mortgage Loans making up the related Cross-Collateralized Group. Further, if applicablesubject to the terms of the related loan documents and applicable law, no assumption of a Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Performing Serviced Pari Passu Companion LoanMortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall immediately notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative and, with respect to a Loan Combination, the related Non-Trust Mortgage Loan Noteholder(s) and, in connection with the case of each of the 000 Xxxx Xxxxxx Trust Mortgage Loan and the Courtyard by Marriott Trust Mortgage Loan, the related Directing Certificateholder, of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to no assumption of a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C3)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor (or its owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender, provided that certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied), then the Master Servicer shall promptly obtain relevant information for purposes of evaluating any such request. If the Master Servicer determines, consistent with the Servicing Standard, to approve such transfer and/or assumption and/or that the conditions precedent have been satisfied, as applicable, then the Master Servicer shall promptly provide to the Special Servicer a copy of such recommendation (which shall include the reason therefor) and the materials upon which such recommendation is based. The Special Servicer shall have the right hereunder, within 15 days (or, in the case of a consent to a determination as to whether the conditions precedent to a transfer or assumption have been satisfied, within 10 days) of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, to reasonably withhold or grant consent to any such request for such transfer and/or assumption or to object or consent to the determination by the Master Servicer as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement, including, without limitation, the Servicing Standard; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11, Section 6.12, Section 6.13 and/or Section 6.14, in each case if and as applicable. If the Special Servicer does not respond within such 15-day period or 10-day period, as applicable, the Special Servicer's consent shall be deemed granted. If the Special Servicer consents or is deemed to have consented to such proposed transfer and/or assumption, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits and substitute as obligor thereunder the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage Loan DocumentsMortgage. The Master Servicer shall notify the Trustee, the applicable Master Servicer (with respect to Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan andNoteholder(s), if applicableof any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Trust Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Performing Serviced Pari Passu Companion LoanMortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender provided that certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall immediately notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11, Section 6.12, Section 6.13 and/or Section 6.14, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Serviced Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected no assumption of a Serviced Mortgage Loan is or relates to a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Sec Corp Ii Lb-Ubs Comm Mort Trust 2004-C4)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion that is a Pooled Mortgage Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer (and, if a Serviced Mortgage Loan Group is involved, to the related Serviced Mortgage Loan Group Controlling Party) with (x) written notice of any Borrower request for such assignment and assumption or such encumbranceassumption, (y) the applicable Master Servicer’s written 's recommendations and analysis, and (z) with all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.243.24 and/or 3.27, and/or Section 3.26 if and as applicable), and (3) except with respect to any Nationwide Pooled Mortgage Loan or PCF Pooled Mortgage Loan, if any such consent has not been expressly denied within fifteen (15) seven Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s 's receipt from the applicable Master Servicer of the applicable such Master Servicer’s written 's recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted, and (4) solely with respect to any PCF Pooled Mortgage Loan or any Nationwide Pooled Mortgage Loan, any such consent shall be deemed to have been granted if such consent has not been expressly denied either (x) within ten Business Days of the Special Servicer's receipt of the applicable Master Servicer's recommendations and analysis, if the Special Servicer has not requested additional information as described above on or before the date that is four Business Days following the Special Servicer's initial receipt of the applicable Master Servicer's recommendations and analysis, or (y) within six Business Days following the Special Servicer's receipt of the additional information requested by the Special Servicer as described above, if the Special Servicer has requested such additional information on or before the date that is four Business Days following the Special Servicer's initial receipt of the applicable Master Servicer's recommendations and analysis);
(B1) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Pooled Mortgage Loan that (together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan) is one of the ten largest Pooled Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Pooled Mortgage Loan and, if applicable, any related Performing other than a Specially Serviced Pari Passu Companion Pooled Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates and (2) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Serviced Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the Special Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) unless and in the case of a Serviced Loan Combination, the equivalent until it has received written confirmation from each Pari Passu Companion applicable Rating Agency with respect to for the related Serviced Non-Pooled Pari Passu Companion Loan Securities; andSecurities that such action would not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(C1) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation that such approval or waiver is the subject action would not result in an Adverse Rating Event with respect to any Class of a Rated Certificates from each Rating Agency Confirmation (subject Agency, with respect to Section 3.27) if the related any Serviced Pooled Mortgage Loan that (a) represents 2% or more of the then-then aggregate principal balance of all of the Pooled Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Pooled Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x1.2x and (2) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved and the affected Serviced Mortgage Loan is a Serviced Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the Special Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities that such action would not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable a Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Controlling Class RepresentativeRepresentative and/or the related Serviced Mortgage Loan Group Controlling Party, if and to the extent required under Sections 3.24 and/or Section 3.263.27, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any confirmation(s) of the absence of an Adverse Rating Agency ConfirmationEvent) are covered without any expense to the Trust or (in the case of a Serviced Mortgage Loan CombinationGroup) any expense to any related Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an any Adverse Grantor Trust Event with respect to the any Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable a Master Servicer’s 's recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section Sections 3.24 and/or Section 3.263.27, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s 's approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer if (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretionexercise). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the The applicable Master Servicer shall have the right to grant its consent to any transfers of an interest in the same without Borrower under a Performing Serviced Mortgage Loan, to the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if extent such transfer is allowed under the terms of the related Mortgage Loan Documents (without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion), including a any consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Pooled Mortgage Loan that, together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan, has a Stated Principal Balance that equals or exceeds 5% of the then aggregate Stated Principal Balance of the Mortgage Pool or is one of the then-then current top ten Pooled Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, Pool or has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)%, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a it has received written confirmation from each Rating Agency Confirmation that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense); provided, further, however, that, subject to Section 3.27the terms of the related Mortgage Loan Documents and applicable law, if (i) (and, in the case of any applicable matter involves a Serviced Mortgage Loan Group that includes one or more Serviced Non-Pooled Pari Passu Companion Loans and (ii) the transfer is part of a Loan Combinationan interest in the Borrower greater than 49%, an analogous rating agency then the applicable Master Servicer shall not consent to such transfer unless and until it has received written confirmation from each Rating Agency for the Rated Certificates that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates rated by such Rating Agency and also a written confirmation from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities that such action would not result in an Adverse Rating Agency, if applicable pursuant Event with respect to Section 3.27(k)) any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr10)
Enforcement of Alienation Clauses. Each Master Servicer (awith respect to Performing Mortgage Loans for which it acts as Master Servicer) If the provisions of any and each Special Servicer (with respect to Specially Serviced Mortgage Loan Loans for which it acts as Special Servicer), on behalf of the Trustee as the mortgagee of record, shall enforce any restrictions, contained in the related Mortgage or Serviced Loan Combination expressly permits the assignment other related loan document on transfers or further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related Borrower, unless the applicable Master Servicer or the applicable Special Servicer, as the case may be, has determined, in each case upon its reasonable judgment, that waiver of such restrictions would be in accordance with the satisfaction of specified conditionsServicing Standard; provided that, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of subject to the related Mortgage Loan DocumentsDocuments and applicable law, neither the applicable Master Servicer nor the applicable Special Servicer shall waive any right it has, or if the provisions of grant any Serviced Mortgage Loan consent it is otherwise entitled to withhold, under any related "due-on-sale" clause or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further "due-on-encumbrance, in each case, " clause (other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB NCBFSB Subordinate Debt Conditions have been satisfied) until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer if (but only if) with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant "due-on-sale clause or sale" clause, such "due-on-encumbrance sale" clause or (ii) if in the best economic interest of the Trust and, if applicable, involves any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan andthat, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption individually or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,00015,000,000 or 5% of the Initial Pool Balance or, with respect to the enforcement of a "due-on-encumbrance" clause, such Mortgage Loan or group of Cross-Collateralized Mortgage Loans: (i) is greater than 2% of the Mortgage Pool balance, (ii) has an original principal balance that is one of the ten highest original principal balances in the Mortgage Pool, (iii) has an aggregate debt service coverage ratio less than 1.20x or (iv) has an aggregate loan-to-value ratio greater than 85%; and provided, further, that a Master Servicer shall not waive any right it has, or if a Serviced grant any consent it is otherwise entitled to withhold under any "due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan Combination is involvedfor which it acts as Master Servicer until it has received the consent of the applicable Special Servicer (the giving of which consent shall be subject to Section 3.24; and provided, thenfurther, that, subject to the related Mortgage Loan Documents and applicable law, neither such Master Servicer nor such Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan (other than with respect to a Co-op Mortgage Loan as to which the NCBFSB Subordinate Debt Conditions have been satisfied), or approve the assumption of any Mortgage Loan, unless in any such case, all associated costs and expenses are covered without any expense to the Trust (it being understood and agreed that, except as expressly provided herein, neither such Special Servicer nor such Master Servicer shall be obligated to cover or assume any such costs or expenses); and provided, further, that neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer shall (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(Cextent that it is within the control thereof to prohibit such event) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject consent to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject transfer of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) Borrower or (ii) either (x) in the case of the applicable Master Servicer, it has obtained obtains the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Controlling Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the . The applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor and the applicable Special Servicer (shall each provide the other and the Controlling Class Representative with respect all such information as each may reasonably request in order to a Specially Serviced make any determination required under this paragraph. In connection with any permitted assumption of any Mortgage Loan) shall enter into such approval Loan or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust a "due-on-sale" or "due-on-encumbrance" clause thereunder, each Master Servicer (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loanfor which it acts as Master Servicer) nor the applicable or each Special Servicer (with respect to in the case of a Specially Serviced Mortgage LoanLoan for which it acts Special Servicer) shall, in connection shall prepare all documents necessary and appropriate for such purposes and shall coordinate with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision the related Borrower for the due execution and delivery of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion)documents. Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Co-op Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmationratings confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB NCBFSB Subordinate Debt Conditions have been metmet (as certified in writing to the Trustee and the Controlling Class Representative by the Co-op Master Servicer no later than ten Business Days prior to the making of the subject subordinate loan without right of reimbursement from the Trust) which certification shall include notice of the circumstances of the waiver, calculation of the required loan-to-value ratio, a copy of any appraisal relied on and any information necessary for the Controlling Class Representative to determine whether the NCBFSB Subordinate Debt Conditions have been satisfied); provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Co-op Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” " clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In . If a Master Servicer or a Special Servicer collects an assumption fee or an assumption application fee in connection with any permitted assumption transfer or proposed transfer of any Serviced interest in a Borrower or a Mortgaged Property, then such Master Servicer or such Special Servicer, as applicable, will apply that fee to cover the costs and expenses associated with that transfer or proposed transfer that are not otherwise paid by the related Borrower and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses, to the extent such fees and expenses are collectible under the related Mortgage Loan Document or Serviced Loan Combination applicable law. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or waiver of such assumption application fee (such remaining portion, a “due-on-sale” or “due-on-encumbrance” clause thereunder, "Net Assumption Application Fee") will be applied as additional compensation to the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate accordance with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, 3.11. Neither the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of nor the applicable Special Servicer (shall waive any assumption fee or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessassumption application fee, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided it would constitute additional compensation for in the related Mortgage Loan Documentsother such party, which provisions shall not be waived by without the applicable Master Servicer, and, if not paid, consent of such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensationother party.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CSFB Mortgage Sec Corp Comm Mort Pass THR Cert Ser 2003-Cnp1)
Enforcement of Alienation Clauses. (a) If In the event that the Master Servicer receives a request from a Mortgagor pursuant to the provisions of any Serviced Mortgage Loan or Companion Loan (other than a Specially Serviced Loan) that expressly permit, with the lender's consent, subject to the conditions described in the Mortgage Loan Combination expressly permits documents, the assignment transfer of the related Mortgaged Property to, and assumption of such Mortgage Loan or Companion Loan, as the case may be, by, another Person, Person or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of certain interests in such BorrowerMortgagor, the Master Servicer shall promptly obtain relevant information for purposes of evaluating such request. If the Master Servicer recommends to approve such transfer and/or assumption, the Master Servicer shall promptly provide to the Special Servicer a copy of such recommendation (which shall include the reason therefor) requests approval and the materials upon which such recommendation is based. The Special Servicer shall have the right hereunder, within 15 days of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, to reasonably withhold or, subject to SECTION 3.08(d), SECTION 6.11 and SECTION 6.11A, grant consent to any such request for such an assignment transfer and/or assumption in accordance with the terms of the Mortgage Loan and assumption this Agreement, including, without limitation, the Servicing Standard. If the Special Servicer does not respond within such 15-day period, the Special Servicer's consent shall be deemed granted. If the Special Servicer consents or is deemed to have consented to such proposed transfer or enters into and/or assumption, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Mortgage Loan or of interest(s) in such Borrower in violation of Companion Loan, as the case may be, by, another Person, the Master Servicer shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Mortgage Loan Documents, or if and substitute as obligor thereunder the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; PROVIDED, HOWEVER, that the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and agreement to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, that any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that terms thereof would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) aboveor create any lien on a Mortgaged Property that is senior to, or itself enter into such an approval or waiveron parity with, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval lien of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion)Mortgage. Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB The Master Servicer shall not waive any right it hasnotify the Trustee, or grant any consent it is otherwise entitled to withholdthe Special Servicer, each Rating Agency (but in accordance with any related “due-on-encumbrance” clause under any Mortgage Loanthe case of Fitch, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to only if the Trust.
(b) In connection with any permitted assumption of any Serviced subject Mortgage Loan is then one of the ten largest (measured by unpaid principal balance) Mortgage Loans in the Mortgage Pool or Serviced Loan Combination or waiver is then a part of a “due-on-sale” or “due-on-encumbrance” clause thereunderone of the ten largest groups (measured by aggregate unpaid principal balance) of Mortgage Loans with related Mortgagors) and, the applicable Master Servicer (in the case of a Performing Serviced Mortgage LoanLoan Pair, the related Companion Loan Noteholder, of any assumption or substitution agreement executed pursuant to this SECTION 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. The Master Servicer shall be entitled (as additional servicing compensation) to 50% of each assumption fee and 100% of each assumption application fee and each other applicable fee, for approving a transfer of a Mortgaged Property or an interest in a Mortgagor collected from a Mortgagor in connection with an assumption or substitution agreement executed pursuant to this SECTION 3.08(a) or the applicable Special Servicer (a transfer of interest in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section Mortgagor approved pursuant to this SECTION 3.08(a), in connection with any transfer of an interest in and the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Special Servicer shall have the right to grant its consent be entitled (as additional special servicing compensation) to the same without the consent or approval remaining portion, if any, of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with each such applicable Master Servicer consent) if such transfer is allowed under assumption fee. Subject to the terms of the related Mortgage Loan Documents documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to no assumption of a Mortgage Loan thatshall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Mortgagor.
(b) Other than with respect to a transfer and assumption referred to in SUBSECTION (a) above, if any Mortgage contains restrictions on transfers of the related Mortgaged Property and/or transfers of interests in the related Mortgagor, then the Special Servicer, on behalf of the Trust (and, with respect to a Loan Pair, the related Companion Loan Noteholder), and not the Master Servicer, shall, to the extent permitted by applicable law, enforce such restrictions, unless the Special Servicer has determined, in its reasonable, good faith judgment, that waiver of such restrictions would be in accordance with the Servicing Standard (as evidenced by an Officer's Certificate setting forth the basis for such determination delivered, together with all other Mortgage Loansa Review Package in respect thereof, if anyto the Trustee, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage LoanMaster Servicer, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require each Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, but in the case of any applicable Serviced Fitch, only if the subject Mortgage Loan that is then one of the ten largest (measured by unpaid principal balance) Mortgage Loans in the Mortgage Pool or is then a part of one of the ten largest groups (measured by aggregate unpaid principal balance) of Mortgage Loans with related Mortgagors) and, with respect to a Loan CombinationPair, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Companion Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, Noteholder); PROVIDED that any such costs waiver of such restrictions shall be paid by and reimbursed subject to the applicable Master Servicer as an Additional Trust Fund ExpenseSECTION 3.08(d). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation., SECTION 6.11
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Sec Corp Com Mort Pas THR Certs Ser 2000-C3)
Enforcement of Alienation Clauses. (a) If the provisions Upon receipt of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation waiver in respect of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provision, the Master Servicer, with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans, and the Special Servicer, with respect to Specially Serviced Mortgage Loans, shall promptly analyze such waiver, including the preparation of written materials in connection with such analysis, and will close the related transaction, subject to the consent rights (if any) of each Companion Holder pursuant to the related Intercreditor Agreement as provided that in this Section 3.08. With respect to all Mortgage Loans other than Specially Serviced Mortgage Loans and the [__________] Serviced Mortgage Loan, the Master Servicer or, in the case of Specially Serviced Mortgage Loans, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers of interests in the related Mortgagor, unless following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), its receipt of a request of a waiver in respect of a due-on-sale or due-on-encumbrance provision the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained (with the written consent of the applicable Special Servicer Servicer, which consent shall be deemed given if not denied within the later of (it being understood and agreed that (1a) 15 Business Days after the applicable Special Servicer’s receipt of the written recommendation of the Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment action and assumption or such encumbrance, (y) any additional information the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request for the analysis of such request (such recommendation and information may be delivered in order an electronic format reasonably acceptable to withhold or grant any such consent, (2the Master Servicer and the Special Servicer) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3b) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time Controlling Class Representative’s receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative may reasonably request for the analysis of such request, which notice shall be given by the Special Servicer no later than 10 Business Days after the commencement of the 15 Business Day period provided for described in the related Intercreditor Agreementpreceding clause (a)) or the Special Servicer (with the written consent of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decisionControlling Class Representative, such which consent shall be deemed given if not denied within five Business Days after the Controlling Class Representative’s receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative may reasonably request for the analysis of such request), as applicable, has determined, consistent with the Servicing Standard, that the waiver of such restrictions would be in accordance with the Servicing Standard. Promptly after the Master Servicer (with the written consent of the Special Servicer to have been granted;
the extent required in the preceding sentence) or the Special Servicer (Bwith the written consent of the Controlling Class Representative to the extent required in the preceding sentence), as applicable, has made any such determination, the Master Servicer or the Special Servicer shall deliver to the Trustee, the Rating Agencies and each other party hereto an Officer’s Certificate setting forth the basis for such determination. Neither the Master Servicer nor the Special Servicer shall exercise (and the Special Servicer shall not consent to) if approval of an assignment and assumption or any such waiver in respect of a due-on-sale encumbrance provision is involved of any Mortgage Loan (i) with respect to which the aggregate of the Stated Principal Balance of such Mortgage Loan and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, are one of the ten largest Mortgage Loans or concentrations of Mortgage Loans, if anyas of the date of such waiver request, without receiving prior written confirmation from [S&P and Xxxxx’x] that are such action would not result in a downgrading, qualification or withdrawal of the same Cross-Collateralized Group as ratings then assigned to the Certificates or (ii) with respect to which (a) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the same Borrower as Mortgagor on such Mortgage Loan, is equal to or in excess of $[20,000,000], (b) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have Borrowers that are known been made to be Mortgagors affiliated with the Borrower under Mortgagor on such Mortgage Loan, are greater than 2% of the aggregate Stated Principal Balance of all Mortgage Loans, (c) such Mortgage Loan is one of the ten largest Mortgage Loans then in as of the Trustdate of the waiver (by Stated Principal Balance), or (d) such Mortgage Loan has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio Value Ratio (including existing and proposed calculated to include the additional debtindebtedness secured by any encumbrance) that is equal to or greater than 85% and a Debt Service Coverage Ratio (calculated to include the additional debt from any encumbrance) of 1.2x or (d) has an aggregate debt service coverage ratio (including less, without receiving a prior written confirmation from [S&P] that such action would not result in a downgrading, qualification or withdrawal of the debt service on ratings then assigned to the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or Certificates. With respect to a waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable lawprovision, neither the Master Servicer nor the Special Servicer shall waive any such restriction without receiving prior written confirmation from [Xxxxx’x and S&P] that such action would not result in a downgrading, qualification or withdrawal of the ratings then assigned to the Certificates; provided that, if the Mortgage Loan (a) does not have an aggregate Stated Principal Balance (including the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan) equal to or in excess of $35,000,000 (or $25,000,000 with respect to Xxxxx’x), (b) does not have an aggregate Stated Principal Balance (including the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan) greater than 5% of the aggregate Stated Principal Balance of all Mortgage Loans or (c) is not one of the ten largest Mortgage Loans as of the date of the waiver (by Stated Principal Balance), the Master Servicer or the Special Servicer, as applicable, may waive such requirement without confirmation by [S&P] in accordance with the Servicing Standard; and provided, further, that, if the Mortgage Loan does not meet the criteria set forth in clause (ii) of the immediately preceding sentence, the Master Servicer or Special Servicer, as applicable, may waive such requirement without approval by [S&P or Xxxxx’x] in accordance with the Servicing Standard; and provided, further, that, if the Mortgage Loan is not one of the ten largest Mortgage Loans (by Stated Principal Balance, including all other Mortgage Loans that are cross-collateralized and cross-defaulted with such Mortgage Loan) as of the date of the waiver, the Master Servicer or Special Servicer, as applicable, may waive such requirement without approval by Fitch in accordance with the Servicing Standard. With respect to each Co-Lender Loan, no waiver of a due-on-sale or due-on-encumbrance provision will be effective unless the Master Servicer or Special Servicer, as applicable, first consults with the related Subordinate Companion Holder if required under the applicable Intercreditor Agreement. Notwithstanding anything contrary in this Section 3.08(a) and solely with respect to the [__________] Loan, although consent of the Master Servicer is required, neither the consent of the Special Servicer nor the applicable Rating Agencies shall be required with respect to an initial syndication of up to a total of $[11,500,000] of the various Mortgagor’s equity interests. The Special Servicer and the Rating Agencies shall be notified upon the completion of any such syndication.
(b) Notwithstanding any other provisions of this Section 3.08, the Master Servicer (with respect to a Performing Mortgage Loans other than Specially Serviced Mortgage Loan and, if applicable, any related Performing Loans and the [__________] Serviced Pari Passu Companion Mortgage Loan) nor (without the applicable Special Servicer’s consent) or the Special Servicer (with respect to a Specially Serviced Mortgage LoanLoans) shall enter into such approval or waiver with respect may grant, without any Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor’s request for consent to any subject the related Mortgaged Property which secures a Crossto an easement or right-Collateralized Group unless (i) all of-way for utilities, access, parking, public improvements or another purpose, and may consent to subordination of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither to such easement or right-of-way provided the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable the Special Servicer, as applicable, shall be permitted to deny have determined in accordance with the Servicing Standard that such easement or right-of-way shall not materially interfere with the then-current use of the related request;Mortgaged Property, or the security intended to be provided by such Mortgage, the related Mortgagor’s ability to repay the Mortgage Loan, or materially or adversely affect the value of such Mortgaged Property or cause the Mortgage Loan to cease to be a “qualified mortgage” for REMIC purposes.
(Fc) neither Within ninety (90) days of the applicable Master Servicer (Closing Date, with respect to each of the Mortgage Loans covered by an environmental insurance policy, if any, the Master Servicer shall notify the insurer under such environmental insurance policy and take all other action necessary for the Trustee, on behalf of the Certificateholders, to be an insured (and for the Master Servicer, on behalf of the Trust Fund, to make claims) under such environmental insurance policy. In the event that the Master Servicer has actual knowledge of any event (an “Insured Environmental Event”) giving rise to a Performing Serviced claim under any environmental insurance policy in respect of any Mortgage Loan andcovered thereby, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Master Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in accordance with the terms of such environmental insurance policy and the Servicing Standard, timely make a claim thereunder with the appropriate insurer and shall take such other actions in accordance with the Servicing Standard which are necessary under such environmental insurance policy in order to realize the full value thereof for the benefit of the Certificateholders. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such approval or waiver, consent or agree claim under an environmental insurance policy shall be paid by the Master Servicer and shall be reimbursable to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with it as a Servicing Advance. With respect to any REMIC Pool each environmental insurance policy that relates to one or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op more Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debtLoans, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive review and familiarize itself with the terms and conditions relating to enforcement of claims and shall monitor the dates by which any right it has, claim must be made or grant any consent it is otherwise entitled action must be taken under such policy to withhold, realize the full value thereof for the benefit of the Certificateholders in accordance with any related “due-on-encumbrance” clause the event the Master Servicer has actual knowledge of an Insured Environmental Event giving rise to a claim under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to policy. In the Trust.
(b) In connection with any permitted assumption event that the Master Servicer receives notice of any Serviced termination of any environmental insurance policy that relates to one or more Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunderLoans, the applicable Master Servicer shall, within five Business Days after receipt of such notice, notify the Special Servicer, the Controlling Class Representative, the related Companion Holder (in the case of a Performing Serviced Mortgage Co-Lender Loan) or ), the applicable Special Rating Agencies and the Trustee of such termination in writing. Upon receipt of such notice, the Master Servicer (in the case of a with respect to non-Specially Serviced Mortgage LoanLoans, and the Special Servicer with respect to Specially Serviced Mortgage Loans, shall address such termination in accordance with Section 3.07(a) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower same manner as it would the termination of any other Insurance Policy required under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without documents. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Servicing Standard in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including connection with a consent to transfer to any subsidiary or affiliate resolution of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is termination of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs environmental insurance policy shall be paid by the Master Servicer and reimbursed shall be reimbursable to it as a Servicing Advance.
(d) For the avoidance of doubt, any servicing obligation set forth under this Section 3.08 of the Master Servicer or Special Servicer, as applicable, for any Co-Lender Loan shall also apply to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensationrelated Companion Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr9)
Enforcement of Alienation Clauses. (a) If the provisions Upon receipt of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation waiver in respect of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provision, the Master Servicer, with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans, and the Special Servicer, with respect to Specially Serviced Mortgage Loans, shall promptly analyze such waiver, including the preparation of written materials in connection with such analysis, and will close the related transaction, subject to the consent rights (if any) of each Companion Holder pursuant to the related Intercreditor Agreement as provided that in this Section 3.08. With respect to all Mortgage Loans other than Specially Serviced Mortgage Loans, the Master Servicer or, in the case of Specially Serviced Mortgage Loans, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers of interests in the related Mortgagor, unless following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), its receipt of a request of a waiver in respect of a due-on-sale or due-on-encumbrance provision the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained (with the written consent of the applicable Special Servicer Servicer, which consent shall be deemed given if not denied within the later of (it being understood and agreed that (1a) 15 Business Days after the applicable Special Servicer's receipt of the written recommendation of the Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment action and assumption or such encumbrance, (y) any additional information the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request for the analysis of such request (such recommendation and information may be delivered in order an electronic format reasonably acceptable to withhold or grant any such consent, (2the Master Servicer and the Special Servicer) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3b) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time Controlling Class Representative's receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative may reasonably request for the analysis of such request, which notice shall be given by the Special Servicer no later than 10 Business Days after the commencement of the 15 Business Day period provided for described in the related Intercreditor Agreementpreceding clause (a)) or the Special Servicer (with the written consent of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decisionControlling Class Representative, such which consent shall be deemed given if not denied within five Business Days after the Controlling Class Representative's receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative may reasonably request for the analysis of such request), as applicable, has determined, consistent with the Servicing Standard, that the waiver of such restrictions would be in accordance with the Servicing Standard. Promptly after the Master Servicer (with the written consent of the Special Servicer to have been granted;
the extent required in the preceding sentence) or the Special Servicer (Bwith the written consent of the Controlling Class Representative to the extent required in the preceding sentence), as applicable, has made any such determination, the Master Servicer or the Special Servicer shall deliver to the Trustee, the Rating Agencies and each other party hereto an Officer's Certificate setting forth the basis for such determination. Neither the Master Servicer nor the Special Servicer shall exercise (and the Special Servicer shall not consent to) if approval of an assignment and assumption or any such waiver in respect of a due-on-sale encumbrance provision is involved of any Mortgage Loan (i) with respect to which the aggregate of the Stated Principal Balance of such Mortgage Loan and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, are one of the ten largest Mortgage Loans or concentrations of Mortgage Loans, if anyas of the date of such waiver request, without receiving prior written confirmation from S&P, Moody's and DBRS that are such action would not result in a downgrading, xxxxxxxcation or withdrawal of the same Cross-Collateralized Group as ratings then assigned to the Certificates or (ii) with respect to which (a) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the same Borrower as Mortgagor on such Mortgage Loan, is equal to or in excess of $20,000,000, (b) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have Borrowers that are known been made to be Mortgagors affiliated with the Borrower under Mortgagor on such Mortgage Loan, are greater than 2% of the aggregate Stated Principal Balance of all Mortgage Loans, or (c) such Mortgage Loan is one of the ten largest Mortgage Loans then in as of the Trustdate of the waiver (by Stated Principal Balance), or (d) such Mortgage Loan has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio Value Ratio (including existing and proposed calculated to include the additional debtindebtedness secured by any encumbrance) that is equal to or greater than 85% and a Debt Service Coverage Ratio (calculated to include the additional debt from any encumbrance) of 1.2x or (d) has an aggregate debt service coverage ratio (including less, without receiving a prior written confirmation from S&P that such action would not result in a downgrading, qualification or withdrawal of the debt service on ratings then assigned to the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or Certificates. With respect to a waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable lawprovision, neither the Master Servicer nor the Special Servicer shall waive any such restriction without receiving prior written confirmation from S&P, Moody's and DBRS that such action would not result in a downgrading, xxxxxxxcation or withdrawal of the ratings then assigned to the Certificates; provided that, if the Mortgage Loan (a) does not have an aggregate Stated Principal Balance (including the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan) equal to or in excess of $35,000,000 (or $25,000,000 with respect to Moody's), (b) does not have an aggregate Stated Principal Balance (inxxxxxxx the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan) greater than 5% of the aggregate Stated Principal Balance of all Mortgage Loans or (c) is not one of the ten largest Mortgage Loans as of the date of the waiver (by Stated Principal Balance), the Master Servicer or the Special Servicer, as applicable, may waive such requirement without confirmation by S&P and without confirmation by DBRS (with respect to item (c) only) in accordance with the Servicing Standard; and provided, further, that, if the Mortgage Loan does not meet the criteria set forth in clause (ii) of the immediately preceding sentence, the Master Servicer or Special Servicer, as applicable, may waive such requirement without approval by S&P or Moody's in accordance with the Servicing Standard. With respect to eaxx Xx-Xender Loan, no waiver of a due-on-sale or due-on-encumbrance provision will be effective unless the Master Servicer or Special Servicer, as applicable, first consults with the related Subordinate Companion Holder if required under the applicable Intercreditor Agreement.
(b) Notwithstanding any other provisions of this Section 3.08, the Master Servicer (with respect to a Performing Mortgage Loans other than Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion LoanLoans) nor (without the applicable Special Servicer's consent) or the Special Servicer (with respect to a Specially Serviced Mortgage LoanLoans) shall enter into such approval or waiver with respect may grant, without any Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor's request for consent to any subject the related Mortgaged Property which secures a Crossto an easement or right-Collateralized Group unless (i) all of-way for utilities, access, parking, public improvements or another purpose, and may consent to subordination of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither to such easement or right-of-way provided the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable the Special Servicer, as applicable, shall be permitted to deny have determined in accordance with the Servicing Standard that such easement or right-of-way shall not materially interfere with the then-current use of the related request;Mortgaged Property, or the security intended to be provided by such Mortgage, the related Mortgagor's ability to repay the Mortgage Loan, or materially or adversely affect the value of such Mortgaged Property or cause the Mortgage Loan to cease to be a "qualified mortgage" for REMIC purposes.
(Fc) neither Within ninety (90) days of the applicable Master Servicer (Closing Date, with respect to each of the Mortgage Loans covered by an environmental insurance policy, the Master Servicer shall notify the insurer under such environmental insurance policy and take all other action necessary for the Trustee, on behalf of the Certificateholders, to be an insured (and for the Master Servicer, on behalf of the Trust Fund, to make claims) under such environmental insurance policy. In the event that the Master Servicer has actual knowledge of any event (an "Insured Environmental Event") giving rise to a Performing Serviced claim under any environmental insurance policy in respect of any Mortgage Loan andcovered thereby, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Master Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in accordance with the terms of such environmental insurance policy and the Servicing Standard, timely make a claim thereunder with the appropriate insurer and shall take such other actions in accordance with the Servicing Standard which are necessary under such environmental insurance policy in order to realize the full value thereof for the benefit of the Certificateholders. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such approval or waiver, consent or agree claim under an environmental insurance policy shall be paid by the Master Servicer and shall be reimbursable to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with it as a Servicing Advance. With respect to any REMIC Pool each environmental insurance policy that relates to one or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op more Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debtLoans, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive review and familiarize itself with the terms and conditions relating to enforcement of claims and shall monitor the dates by which any right it has, claim must be made or grant any consent it is otherwise entitled action must be taken under such policy to withhold, realize the full value thereof for the benefit of the Certificateholders in accordance with any related “due-on-encumbrance” clause the event the Master Servicer has actual knowledge of an Insured Environmental Event giving rise to a claim under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to policy. In the Trust.
(b) In connection with any permitted assumption event that the Master Servicer receives notice of any Serviced termination of any environmental insurance policy that relates to one or more Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunderLoans, the applicable Master Servicer shall, within five Business Days after receipt of such notice, notify the Special Servicer, the Controlling Class Representative, the related Companion Holder (in the case of a Performing Serviced Mortgage Co-Lender Loan) or ), the applicable Special Rating Agencies and the Trustee of such termination in writing. Upon receipt of such notice, the Master Servicer (in the case of a with respect to non-Specially Serviced Mortgage LoanLoans, and the Special Servicer with respect to Specially Serviced Mortgage Loans, shall address such termination in accordance with Section 3.07(a) in the same manner as it would the termination of any other Insurance Policy required under the related Mortgage Loan documents. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with a resolution of such termination of an environmental insurance policy shall prepare all documents necessary and appropriate for such purposes be paid by the Master Servicer and shall coordinate with the related Borrower for the due execution and delivery of such documentsbe reimbursable to it as a Servicing Advance.
(cd) Notwithstanding For the avoidance of doubt, any servicing obligation set forth under this Section 3.08(a)3.08 of the Master Servicer or Special Servicer, in connection with as applicable, for any transfer of an interest in Pari Passu Mortgage Loan shall also apply to the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2004-C15)
Enforcement of Alienation Clauses. The Master Servicer (a) If the provisions of any with respect to Mortgage Loans other than Specially Serviced Mortgage Loan Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record, shall evaluate any right to transfer and, subject to Section 3.24, shall enforce the restrictions contained in any Mortgage on transfers or Serviced Loan Combination expressly permits the assignment further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related Borrower, in each case upon unless the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable the Special Servicer, as applicableappropriate, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shallhas determined, in connection with any such approval or waiverits reasonable, consent or agree to any modificationgood faith judgment, that waiver or amendment of any term or provision of such Serviced Mortgage Loan that restrictions would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to that the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on- sale" or "due-on-encumbrance” " clause unless and until (i) it has so notified the Special Servicer in writing and provided the Special Servicer with any written or electronic information in the Master Servicer's possession regarding the affected Mortgage Loan that the Special Servicer may reasonably request within five Business Days of receiving such written notice and (ii) the Special Servicer has consented to such action (such consent to be given or withheld in accordance with the Servicing Standard and to be deemed given if the Special Servicer does not object to such action within ten Business Days after receiving such additional information from the Master Servicer (or, if it did not request additional information, within ten Business Days after receiving such written notice)); and provided, further, that neither the Master Servicer nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “related "due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable lawor, if (i) the affected Serviced Mortgage Loan is or relates to a it involves any Mortgage Loan that, individually or together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is either (i) represents one of the then-current top ten largest Mortgage Loans/groups of related Mortgage Loans or (by Stated Principal Balanceii) in has an unpaid principal balance at least equal to the Mortgage Pool, has a Cut-off Date Principal Balance in excess lesser of (A) $20,000,000, or has a Stated Principal Balance that equals or exceeds 515,000,000 and (B) 2% of the then-then aggregate Stated Principal Balance principal balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the under any related Other Pooling and Servicing Agreement would require "due-on-sale" clause) until it has received written confirmation from each Rating Agency Confirmation if that such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise action would not result in a change in control of the Borrower (for these purposes, “control” when used an Adverse Rating Event with respect to any specified person means Class of Rated Certificates; and provided, further, that neither the power Master Servicer nor the Special Servicer shall (to direct the management and policies extent that it is within the control thereof to prohibit such event) consent to the transfer of any Mortgaged Property which secures a Cross-Collateralized Group unless all of the Mortgaged Properties securing such personCross-Collateralized Group are transferred simultaneously by the respective Borrower. After having made any determination to waive the Trust's rights under a "due-on-sale" or "due-on encumbrance" clause, directly the Master Servicer or indirectlythe Special Servicer, whether through as appropriate, shall deliver to the ownership of voting securitiesTrustee, by contract or otherwise each Rating Agency and the terms “controlling” other such party an Officer's Certificate setting forth the basis for such determination. The Master Servicer and “controlled” have meanings correlative the Special Servicer shall each provide the other with all such information as each may reasonably request in order to make such determination. If the foregoing)Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of any interest in a Borrower or a Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which are to and expenses associated with that transfer or proposed transfer that would otherwise be payable by or reimbursable out of the related Borrower Trust Fund. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "New Assumption Application Fee") will be applied as additional compensation to the Master Servicer or the Special Servicer in accordance with Section 3.11. Neither the Master Servicer nor the Special Servicer shall waive any assumption fee or assumption application fee, to the extent provided it would constitute additional compensation for in the related Mortgage Loan Documentsother such party, which provisions shall not be waived by without the applicable Master Servicer, and, if not paid, consent of such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensationother party.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp)
Enforcement of Alienation Clauses. (a) If the provisions of any The Master Servicers (with respect to Mortgage Loans that are not Specially Serviced Mortgage Loan Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record, shall enforce any "due-on-sale" or Serviced Loan Combination expressly permits "due-on-encumbrance" clauses and any other restrictions contained in the assignment related Mortgage or other related loan document on transfers or further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable unless either Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain Servicer, as the relevant information and review and make a determination to either case may be, has (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance determined, in its reasonable judgment (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent exercised in accordance with the Servicing Standard (and subject which, for the avoidance of doubt, would include a determination that any required conditions to Section 3.24a transfer have been met), and/or Section 3.26 if and that waiver of the lender's rights under such clauses or the waiver of such other restrictions, as applicable), would be in accordance with the Servicing Standard and (3ii) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of complied with the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loansrequirements, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents Section 6.11 and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities6.12; andprovided that:
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents documents and applicable law, neither of the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) Servicers nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” " clause under any Trust Mortgage Loan that is a Significant Mortgage Loan, or if, taking into account existing debt on the subject Mortgaged Property (including any related Non-Trust Loan(s)) and the proposed additional debt as if such total debt were a single mortgage loan, the Loan-to-Value Ratio is equal to or greater than 85% or the Debt Service Coverage Ratio is equal to or less than 1.2x, unless it receives prior written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event (except that prior written confirmation from Fitch shall not be required unless the Trust Mortgage Loan is a Significant Mortgage Loan);
(ii) if the affected Trust Mortgage Loan is a Significant Mortgage Loan, then, subject to the related Mortgage Loan documents and applicable law, neither of the Master Servicers nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Trust Mortgage Loan until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event; provided that, with respect to a waiver of a due-on-sale provision, in the event that such Mortgage Loan is not a Significant Mortgage Loan, and the Mortgage Loan documents contain a requirement for Rating Agency approval, either Master Servicer or the Special Servicer, subject to Section 6.11 and Section 6.12 may waive such requirement without Rating Agency approval in accordance with the Servicing Standard;
(iii) subject to the related Mortgage Loan documents and applicable law, neither Master Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-encumbrance" clause under any Trust Mortgage Loan that is not a Specially Serviced Mortgage Loan until it has delivered to the Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 6.11 and Section 6.12, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of a Loan Combination, the Loan Combination Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, (which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) after receipt by the Special Servicer of the applicable Master Servicer's written recommendation and analysis and any additional information reasonably requested by the Special Servicer or the Controlling Class Representative);
(iv) subject to the related Mortgage Loan documents and applicable law, neither Master Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Trust Mortgage Loan that is not a Specially Serviced Mortgage Loan until it has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 6.11 and Section 6.12 (as applicable), which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of a Loan Combination, the Loan Combination Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, (which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) of receipt by the Special Servicer of the applicable Master Servicer's written recommendation and analysis and any additional information reasonably requested by the Special Servicer or the Controlling Class Representative);
(v) subject to the related Mortgage Loan documents and applicable law, neither of the Master Servicers nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, pursuant to this paragraphor approve the assumption of any Mortgage Loan, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.Trust (it being understood and agreed that, except as expressly provided herein, neither of the Master Servicers nor the Special Servicer shall be obligated to cover or assume any such costs or expenses); and
(bvi) neither of the Master Servicers nor the Special Servicer shall (to the extent that it is within the control thereof to prohibit such event) consent to the transfer of any Mortgaged Property that secures a Crossed Loan Group unless (i) all of the Mortgaged Properties securing such Crossed Loan Group are transferred simultaneously by the respective Mortgagor or (ii) it obtains the consent of the Controlling Class Representative, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of a Loan Combination, the Loan Combination Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) of receipt by the Controlling Class Representative of written notice of such action and all reasonably requested information related thereto (or, if no information is requested, within 10 Business Days (or, if applicable, 15 Business Days) of receipt of written notice). If, in connection with an assumption of any Mortgage Loan, the applicable Mortgage Loan Seller bears the costs and expenses associated with such assumption in accordance with the terms of the applicable Mortgage Loan Purchase Agreement, any costs and expenses subsequently recovered by the applicable Master Servicer from the related Mortgagor in respect of such assumption shall be promptly remitted by such Master Servicer to the applicable Mortgage Loan Seller. In the case of any Mortgage Loan, the applicable Master Servicer and the Special Servicer shall each provide the other with all such information as each may reasonably request in order to perform its duties under this Section. In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Servicer, with respect to Mortgage Loan) or the applicable Special Servicer (in the case of a Loans that are not Specially Serviced Mortgage Loan) Loans, or the Special Servicer, with respect to the Specially Serviced Mortgage Loans, shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
. If either Master Servicer or the Special Servicer, as applicable, consents subsequent to the Closing Date to the incurrence by the principal(s) of a Mortgagor under a Trust Mortgage Loan of mezzanine financing or the incurrence by a Mortgagor of subordinate debt and enters into an intercreditor agreement, such servicer (cto the extent it is permitted to do so under the related loan documents and applicable law and in accordance with the Servicing Standard) Notwithstanding Section 3.08(a), shall require the related mezzanine or subordinate lender to agree to pay a Principal Recovery Fee in connection with any transfer of an interest purchase right that arises upon a loan default in the related Borrower event such purchase occurs after the expiration of 60 days from the date the right to purchase arises under a Performing Serviced such intercreditor agreement. The foregoing sentence shall not operate to modify the provisions of the preceding paragraph of this Section 3.08(a) regarding due-on-sale and due-on-encumbrance provisions. Notwithstanding anything to the contrary herein, with respect to the Mortgage Loan or related Serviced Pari Passu Companion Loan(Sterling University Parks) identified on the Mortgage Loan Schedule by identification number 50, the applicable Master Servicer shall have determine, consistent with the right Servicing Standard, whether the related Mortgagor has complied with the terms and conditions of that certain Consent to grant its Transfer Agreement, dated March 31, 2006, between Artesia Mortgage Capital Corporation, as lender, and University Parks - WACO TIC 24, LP, as borrower, and related to the transfer of the tenant in common interest in such Mortgagor held by EPC Exchange Corporation, Inc. to Xxxxxxxxx Family Limited Partnership. No consent of the Special Servicer, the Controlling Class Representative or any Rating Agency shall be required.
(b) Notwithstanding any other provisions of this Section 3.08, either Master Servicer with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans (without the Special Servicer's consent, but subject to delivering prior notice to the Special Servicer and the Controlling Class Representative (and with respect to a Loan Combination, the related Non-Trust Noteholder(s)) or the Special Servicer with respect to the Specially Serviced Mortgage Loans, as applicable, may grant, without any Rating Agency confirmation as otherwise provided in paragraph (a) above, a Mortgagor's request for consent to subject the same without the related Mortgaged Property to an easement, right-of-way or other similar agreement for utilities, access, parking, public improvements or another purpose, and may consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms to subordination of the related Mortgage Loan Documents without to such easement, right-of-way or other similar agreement provided the exercise of any lender approval applicable Master Servicer or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Special Servicer, as applicable, shall have determined in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated accordance with the Borrower under Servicing Standard that such Mortgage Loaneasement, is one of right-of-way or other similar agreement shall not materially interfere with the then-current top ten use of the related Mortgaged Property, the security intended to be provided by such Mortgage Loans (by Stated Principal Balance) in or the related Mortgagor's ability to repay the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000Loan, or has a Stated Principal Balance that equals materially and adversely affect the value of such Mortgaged Property, or exceeds 5% of the then-aggregate Stated Principal Balance of cause the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are cease to be payable by the related Borrower to the extent provided a qualified mortgage loan for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationREMIC purposes.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2006-C1)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall promptly notify the Special Servicer of such request, shall evaluate (consistent with the Servicing Standard) the experience and financial condition of the proposed transferee and the status of any conditions to transfer or assumption (as described above) and prepare a report in connection therewith and shall deliver to the Special Servicer such report and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder, within 15 days (or, in the case of a consent to a determination as to whether the conditions precedent to the subject transfer or assumption have been satisfied, within 10 days, or within such longer period as may be necessary to obtain any required consent pursuant to Section 6.11 or 6.12, as and if applicable) of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, in accordance with the Servicing Standard, to withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable. If the Special Servicer does not respond within such 15-day period, 10-day period or such longer period as set forth above (and set forth in the notice described in the following proviso), as the case may be, such party's consent shall be deemed granted; provided, that if the Special Servicer's consent is not withheld, granted or deemed granted within the aforementioned 15-day period or 10-day period, as applicable, because the Special Servicer is in the process of obtaining a consent required pursuant to Section 6.11 and/or Section 6.12, as applicable, then the Special Servicer shall, prior to the termination of the aforementioned 15-day or 10-day period, provide notice to the Master Servicer of such process and the estimated time period for completion thereof. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Serviced Mortgage Loan and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer and/or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then, in each such case, the Special Servicer shall notify the Master Servicer in writing of such determination, and the Master Servicer shall notify the related Mortgagor that the requested transfer and/or assumption will not be permitted and shall restrict the requested transfer and/or assumption of the subject Performing Serviced Mortgage Loan in accordance with the Servicing Standard. If the Special Servicer consents or is deemed to consent to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits and substitute as obligor thereunder the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage Loan DocumentsMortgage. The Master Servicer shall notify the Trustee, the applicable Master Servicer (with respect to Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan andNoteholder(s), if applicableof any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Trust Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Performing Serviced Pari Passu Companion LoanMortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall promptly notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section 6.12, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Serviced Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected no assumption of a Serviced Mortgage Loan is or relates to a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2007-C6)
Enforcement of Alienation Clauses. (a) If the provisions of any The Master Servicer (with respect to Mortgage Loans that are not Specially Serviced Mortgage Loan Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record, shall enforce any "due-on-sale" or Serviced Loan Combination expressly permits "due-on-encumbrance" clauses and any other restrictions contained in the assignment related Mortgage or other related loan document on transfers or further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon unless the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain Servicer, as the relevant information and review and make a determination to either case may be, has (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance determined, in its reasonable judgment (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent exercised in accordance with the Servicing Standard and which, for the avoidance of doubt, would include a determination that any required conditions to a transfer have been met), that waiver of the lender's rights under such clauses or the waiver of such other restrictions, as applicable, would be in accordance with the Servicing Standard and (ii) complied with the applicable requirements, if any, of Section 6.11 and Section 6.12; provided that:
(i) subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of Mortgage Loan documents and applicable law, neither the applicable Special Servicer’s receipt from the applicable Master Servicer of nor the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to the applicable Master Servicer withhold, in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a accordance with any related "due-on-sale provision encumbrance" clause under any Mortgage Loan that is involved a Significant Mortgage Loan, or if, taking into account existing debt on the subject Mortgaged Property (including any related Non-Trust Loan(s)) and the proposed additional debt as if such total debt were a single Mortgage Loan, the Loan-to-Value Ratio is equal to or greater than 85% or the Debt Service Coverage Ratio is equal to or less than 1.2x, unless it receives prior written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event or (if the Westchester Loan Combination is involved) a Westchester Related MBS Adverse Rating Event;
(ii) if the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Significant Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents documents and applicable law, neither the applicable Master Servicer nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Mortgage Loan until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event or (if the Westchester Loan Combination is involved) a Westchester Related MBS Adverse Rating Event; provided that, with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision provision, in the event that such Mortgage Loan is involvednot a Significant Mortgage Loan, thenand the Mortgage Loan documents contain a requirement for Rating Agency approval, the Master Servicer or the Special Servicer, subject to the related Mortgage Loan Documents Section 6.11 and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into Section 6.12 may waive such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any requirement without Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without ;
(iii) the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” " clause under any Mortgage LoanLoan until it has delivered to the Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 6.11 and Section 6.12 which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to this paragraphSection 6.11 (or, unless in the case of the Westchester Loan Combination, the Westchester Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) after receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any such case, all associated costs and expenses are covered without any expense to additional information reasonably requested by the Trust.Special Servicer or the Controlling Class Representative;
(biv) In connection the Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “related "due-on-sale” or “due-on-encumbrance” " clause thereunder, under any Mortgage Loan until it has received the applicable Master Servicer (in consent of the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case giving of a Specially Serviced Mortgage Loan) which consent shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, be subject to the terms of the related Mortgage Loan Documents Servicing Standard and applicable lawSection 6.11 and Section 6.12 (as applicable) which consent shall be deemed given if not denied in writing within 10 Business Days (or, if (i) the affected Serviced Mortgage Loan Controlling Class Representative is or relates entitled to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject object pursuant to Section 3.27) 6.11 (andor, in the case of any applicable Serviced Mortgage Loan that is part of a the Westchester Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable the Westchester Controlling Party is entitled to object pursuant to Section 3.27(k6.12)) (, 15 Business Days, which 15 Business Days shall include the costs of which are to be payable by the related Borrower to the extent provided for five Business Days specified in the related Mortgage Loan Documents, which provisions shall not be waived by proviso at the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to end of the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.first paragraph of
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-McP1)
Enforcement of Alienation Clauses. (a) If As to each Loan that contains a provision in the provisions nature of any Serviced Mortgage Loan a (i) "due-on-sale" clause (which includes, without limitation, sales or Serviced Loan Combination expressly permits the assignment transfers of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, (in full or in part) or the transfers sale, transfer, pledge or hypothecation of interests direct or indirect interest in the related BorrowerBorrower or its owners), in each case which by its terms (1) provides that such Loan shall (or may at the mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgage Mortgagor; (2) provides that such Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice mortgagee or satisfaction of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, certain conditions in connection with any such approval sale or waiverother transfer, consent or agree to any modification, waiver or amendment of any term or provision of for so long as such Serviced Mortgage Loan that would result is included in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor the Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan Fund or (y)(a3) provides that such Loan may be assumed or transferred without the transaction is permitted under consent of the related Mortgage Loan Documents and (b) the mortgagee provided that certain conditions to the transaction that are set forth in the related Mortgage loan documents are satisfied, or (ii) as to each Loan Documents do not include that contains a provision in the approval nature of a "due-on-encumbrance" clause (including, without limitation, any mezzanine financing of the lender related Borrower or the exercise related Mortgaged Property or any sale or transfer of lender discretion preferred equity in such Borrower or its direct or indirect owners), that by its terms: (1) provides that such Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other than confirming the satisfaction of the other conditions to the transaction set forth in encumbrance on the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or Mortgaged Property; (2) requires the consent of the Mortgagee mortgagee or satisfaction of certain conditions to the creation of any such additional lien or other encumbrance on the related Mortgaged Property; or (3) provides that such Loan may be further encumbered provided that certain conditions set forth in order to incur subordinate debtthe loan documents have been satisfied, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Loan (x) to accelerate the payments thereon, (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without Standard or (z) determine whether the need to obtain any consent or approval hereunder conditions set forth in clause (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions a)(i)(3) of this paragraph have been met; provided that, subject satisfied. Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause (including, but not limited to, making any determination that the conditions set forth in clauses (a)(i)(3) and (a)(ii)(3) of this Section 3.08 have been satisfied), unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Loans in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause (including, but not limited to, making any determination that the conditions set forth in clauses (a)(i)(3) and (a)(ii)(3) of this Section 3.08 have been satisfied) without first obtaining the consent of the Special Servicer. The Special Servicer's consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the immediately succeeding sentence and all information reasonably requested by the Special Servicer and the Special Servicer shall not have responded in writing, via fax or e mail within 15 Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties). In connection with the request set forth above, the Master Servicer shall provide to the Special Servicer written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Special Servicer shall reasonably request and a request for approval by the Special Servicer.
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Directing Certificateholder for (a) any Non-Partitioned Loan and/or Post CAP Whole Loan that is a Performing Loan or (b) for any Specially Serviced Loan that is a Non-Partitioned Loan and/or a Post CAP Whole Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e mail within ten Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) With respect to any A/B Whole Loan for which a related Control Appraisal Period does not exist, (A) the Master Servicer with respect to those time periods when such Loan is a Performing Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Special Servicer, which consent shall not be given without the Special Servicer first obtaining the consent of the related Controlling Holder, and (B) the Special Servicer with respect to those time periods when either such Loan is a Specially Serviced Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the related Controlling Holder. Consent by a Controlling Holder shall be deemed given if the Master Servicer or Special Servicer, as applicable, shall have provided such Controlling Holder written notice of the matter together with all of the information set forth in the last sentence of Section 3.08(a)(ii) and such Controlling Holder shall not have responded in writing, via fax or email within ten Business Days of such request.
(iv) Notwithstanding anything to the contrary contained herein, the Master Servicer shall not permit any such transfer, assumption or further encumbrance of such Loan or related Mortgaged Property or interests in the related Borrower, if the Special Servicer, in accordance with the Servicing Standard, (a) notifies the Master Servicer of its determination with respect to any Loan (which by its terms permits the transfer, assumption or further encumbrance without mortgagee consent provided certain conditions are satisfied and the determination as to whether any such conditions are satisfied would require the mortgagee to exercise the judgment of a reasonable prudent commercial lender) that the conditions required under the related loan documents have not been satisfied or (b) objects in writing to the Master Servicer's determination that such conditions have been satisfied with respect to any such Serviced Loan.
(v) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a), if any Mortgage Loan:
(1) has an outstanding principal balance of greater than $5,000,000 and represents greater than 5% of the then outstanding principal balance of the Mortgage Pool;
(2) has an outstanding principal balance of greater than $35,000,000; or
(3) has an outstanding principal balance of greater than $5,000,000 and is one of the ten largest Mortgage Loans in the Trust Fund based on outstanding principal balance, then neither the Master Servicer nor Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vi) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-encumbrance" clause as described in Section 3.08(a), if any Mortgage Loan:
(1) represents greater than 2% of the then outstanding principal balance of the Mortgage Pool, or
(2) is at the time one of the ten largest Mortgage Loans or crossed portfolios of Cross-Collateralized Mortgage Loans (by outstanding principal balance) in the Mortgage Pool or has an outstanding principal balance of greater than $20,000,000, or
(3) after taking into consideration any additional indebtedness secured by the related Mortgaged Property, the loan-to-value ratio for such Mortgage Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor the Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-encumbrance" clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Set unless the Master Servicer or Special Servicer, as applicable, shall have obtained written confirmation from each Rating Agency that such action shall not result in a qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates or Companion Loan Securities.
(vii) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File. Notwithstanding anything herein to the contrary, the Master Servicer shall approve and close, without the consent of the Special Servicer, all transfers of tenant-in-common ownership interests contemplated by and in accordance with the related loan documents for any Performing Loan listed on Schedule XIII. Upon completion of any such transfer, the Master Servicer shall promptly (i) provide notice by electronic mail thereof to the Special Servicer and (ii) advise the Special Servicer as to the total number of transfers with respect to such Performing Loan that the Master Servicer has approved and closed as of such date and the expiration date (if any) by which such transfer(s) must occur pursuant to the related loan documents.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-1)
Enforcement of Alienation Clauses. The Servicer (a) If the provisions of any with respect to Mortgage Loans other than Specially Serviced Mortgage Loan Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record, shall evaluate any right to transfer and shall enforce the restrictions contained in any Mortgage on transfers or Serviced Loan Combination expressly permits the assignment further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon unless the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicableappropriate, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shallhas determined, in connection with any such approval or waiverits reasonable, consent or agree to any modificationgood faith judgment, that waiver or amendment of any term or provision of such Serviced Mortgage Loan that restrictions would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to that neither the related Mortgage Loan Documents and applicable law, Servicer nor the NCB Master Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-encumbrance” " clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable lawor, if (i) the affected Serviced Mortgage Loan is or relates to a it involves any Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower Mortgagor as such Mortgage Loan or have Borrowers Mortgagors that are known to be affiliated with the Borrower Mortgagor under such Mortgage Loan, is one represents 2% or more of the thenInitial Pool Balance, under any related "due-current top ten Mortgage Loans (by Stated Principal Balanceon-sale" clause) in the Mortgage Pool, until it has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require received written confirmation from each Rating Agency Confirmation if that such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise action would not result in a change in control of the Borrower (for these purposes, “control” when used an Adverse Rating Event with respect to any specified person means Class of Rated Certificates. After having made any such determination, the power Servicer or the Special Servicer, as appropriate, shall deliver to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise Trustee and the terms “controlling” Servicer an Officer's Certificate setting forth the basis for such determination. The Servicer and “controlled” have meanings correlative the Special Servicer shall each provide the other with all information as each may reasonably request in order to make such determination. Notwithstanding the foregoing), then neither the applicable Master Servicer nor the Special Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in that it is within the related Mortgage Loan Documents, control thereof to prohibit such event) consent to the transfer of any Mortgaged Property which provisions shall not be waived secures a Cross- Collateralized Group unless all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensationrespective Mortgagor.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Commercial Mort Corp Comm Mort Pass THR Cer Ser 1998-Cg1)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced With respect to all Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, Loans other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c)Loans, the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan andor, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) , the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers of interests in the related Mortgagor, unless the Master Servicer or the Special Servicer, as applicable, has determined, consistent with the Servicing Standard, that waiver of such restrictions would be in accordance with the Servicing Standard. Promptly after the Master Servicer or the Special Servicer, as applicable, has made any such determination, the Master Servicer or the Special Servicer shall prepare all documents necessary deliver to the Trustee, the Rating Agencies and appropriate each other an Officers' Certificate setting forth the basis for such purposes determination. The Master Servicer or the Special Servicer shall not exercise any such waiver in respect of a due-on-encumbrance provision of any Mortgage Loan for which the aggregate of the Stated Principal Balance of such Mortgage Loan and shall coordinate the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, to its knowledge, constitute one of the ten largest groups of similarly related Borrower for Mortgage Loans based on aggregate Stated Principal Balance as of the due execution and delivery date of such documentsproposed waiver, without receiving the prior written confirmation from the Rating Agencies that such action would not result in a downgrading, qualification or withdrawal of the ratings then assigned to the Certificates. The Master Servicer or the Special Servicer shall not exercise any such waiver in respect of a due-on-sale provision of any Mortgage Loan for which the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, to its knowledge, constitute one of the ten largest groups of similarly related Mortgage Loans based on aggregate Stated Principal Balance as of the date of such proposed waiver, without receiving the prior written confirmation from the Rating Agencies that such action would not result in a downgrading, qualification or withdrawal of any of the ratings then assigned to the Certificates.
(cb) Notwithstanding any other provisions of this Section 3.08(a)3.08, the Master Servicer or the Special Servicer, as applicable, may grant, without any Rating Agency confirmation as provided in connection with any transfer of an interest in paragraph (a) above, a Mortgagor's request for consent to subject the related Borrower under a Performing Serviced Mortgage Loan Mortgaged Property to an easement or related Serviced Pari Passu Companion Loanright-of-way for utilities, the applicable Master Servicer shall have the right to grant its access, parking, public improvements or another purpose, and may consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms subordination of the related Mortgage Loan Documents without to such easement or right-of-way provided the exercise of any lender approval Master Servicer or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Special Servicer, as applicable, shall have determined in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated accordance with the Borrower under Servicing Standards that such Mortgage Loan, is one of easement or right-of-way shall not materially interfere with the then-current top ten Mortgage Loans (use of the related Mortgaged Property, or the security intended to be provided by Stated Principal Balance) in such Mortgage, the related Mortgagor's ability to repay the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000Loan, or has a Stated Principal Balance that equals materially or exceeds 5% adversely affect the value of the then-aggregate Stated Principal Balance of such Mortgaged property or cause the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are cease to be payable by the related Borrower to the extent provided a qualified mortgage loan for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationREMIC purposes.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Certiticates Series 1999 C2)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or As to each Serviced Loan Combination expressly permits that contains a provision in the assignment nature of a (i) "due-on-sale" clause (which includes, without limitation, sales or transfers of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, (in full or in part) or the transfers sale, transfer, pledge or hypothecation of interests direct or indirect interest in the related BorrowerBorrower or its owners), in each case which by its terms (1) provides that such Serviced Loan shall (or may at the mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Mortgagor; (2) provides that such Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice mortgagee or satisfaction of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, certain conditions in connection with any such approval sale or waiverother transfer, consent or agree to any modification, waiver or amendment of any term or provision of for so long as such Serviced Mortgage Loan that would result is included in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor the Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan Fund or (y)(a3) provides that such Serviced Loan may be assumed or transferred without the transaction is permitted under consent of the related Mortgage Loan Documents and (b) the mortgagee provided that certain conditions to the transaction that are set forth in the related Mortgage loan documents are satisfied, or (ii) as to each Serviced Loan Documents do not include that contains a provision in the approval nature of a "due-on-encumbrance" clause (including, without limitation, any mezzanine financing of the lender related Borrower or the exercise related Mortgaged Property or any sale or transfer of lender discretion preferred equity in such Borrower or its direct or indirect owners), that by its terms: (1) provides that such Serviced Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other than confirming the satisfaction of the other conditions to the transaction set forth in encumbrance on the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or Mortgaged Property; (2) requires the consent of the Mortgagee mortgagee or satisfaction of certain conditions to the creation of any such additional lien or other encumbrance on the related Mortgaged Property; or (3) provides that such Serviced Loan may be further encumbered provided that certain conditions set forth in order to incur subordinate debtthe loan documents have been satisfied, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Serviced Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Serviced Loan (x) to accelerate the payments thereon, (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without Standard or (z) determine whether the need to obtain any consent or approval hereunder conditions set forth in clause (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions a)(i)(3) of this paragraph have been met; provided that, subject satisfied. Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause (including, but not limited to, making any determination that the conditions set forth in Section 3.08(a)(i)(3) and Section 3.08 (a)(ii)(3) have been satisfied), unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Loans in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause (including, but not limited to, making any determination that the conditions set forth in Section 3.08(a)(i)(3) and Section 3.08 (a)(ii)(3) have been satisfied) without first obtaining the consent of the Special Servicer. The Special Servicer's consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the immediately succeeding sentence and all information reasonably requested by the Special Servicer and the Special Servicer shall not have responded in writing, via fax or e-mail within 15 Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties). In connection with the request set forth above, the Master Servicer shall provide to the Special Servicer written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Special Servicer shall reasonably request and a request for approval by the Special Servicer.
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Directing Certificateholder for (a) any Non-Partitioned Loan and/or Post CAP A/B Whole Loan that is a Performing Serviced Loan or (b) for any Specially Serviced Loan that is a Non-Partitioned Loan and/or Post CAP A/B Whole Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e-mail within ten Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) With respect to any A/B Whole Loan: (A) the Master Servicer with respect to those time periods when such Loan is a Performing Serviced Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Special Servicer, which consent shall not be given without the Special Servicer first obtaining the consent of the related Controlling Holder, and (B) the Special Servicer with respect to those time periods when either such Loan is a Specially Serviced Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the related Controlling Holder. Consent by a Controlling Holder shall be deemed given if the Master Servicer or Special Servicer, as applicable, shall have provided such Controlling Holder written notice of the matter together with all of the information set forth in the last sentence of Section 3.08(a)(ii) and such Controlling Holder shall not have responded in writing, via fax or email within ten Business Days of such request.
(iv) [RESERVED].
(v) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a), if any Mortgage Loan (other than with respect to any Non-Serviced Mortgage Loan, which is governed by the related Non-Serviced Loan Pooling Agreement):
(1) has a then outstanding principal balance of greater than $5,000,000 and represents greater than 5.0% of the then outstanding principal balance of the Mortgage Pool;
(2) has a then outstanding principal balance of greater than $35,000,000; or
(3) has a then outstanding principal balance of greater than $5,000,000 and is one of the ten largest Mortgage Loans in the Mortgage Pool based on the then outstanding principal balance of the Mortgage Pool, then neither the Master Servicer nor Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vi) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-encumbrance" clause as described in Section 3.08(a), if any Mortgage Loan (other than with respect to any Non-Serviced Mortgage Loan, which is governed by the related Non-Serviced Loan Pooling Agreement):
(1) represents greater than 2.0% of the then outstanding principal balance of the Mortgage Pool;
(2) is at the time one of the ten largest Mortgage Loans or Cross-Collateralized Set of Mortgage Loans by outstanding principal balance in the Mortgage Pool or has a then outstanding principal balance of greater than $20,000,000; or
(3) after taking into consideration any additional indebtedness secured by the related Mortgaged Property and any mezzanine debt, the loan-to-value ratio for such Mortgage Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor the Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-encumbrance" clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Set unless the Master Servicer or Special Servicer, as applicable, shall have obtained written confirmation from each Rating Agency that such action shall not result in a qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates or Companion Loan Securities (if applicable).
(vii) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-3)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or As to each Serviced Loan Combination expressly permits that contains a provision in the assignment nature of a (i) "due-on-sale" clause (which includes, without limitation, sales or transfers of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, (in full or in part) or the transfers sale, transfer, pledge or hypothecation of interests direct or indirect interest in the related BorrowerBorrower or its owners), in each case which by its terms (1) provides that such Serviced Loan shall (or may at the mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Mortgagor; (2) provides that such Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice mortgagee or satisfaction of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, certain conditions in connection with any such approval sale or waiverother transfer, consent or agree to any modification, waiver or amendment of any term or provision of for so long as such Serviced Mortgage Loan that would result is included in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor the Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan Fund or (y)(a3) provides that such Serviced Loan may be assumed or transferred without the transaction is permitted under consent of the related Mortgage Loan Documents and (b) the mortgagee provided that certain conditions to the transaction that are set forth in the related Mortgage loan documents are satisfied, or (ii) as to each Serviced Loan Documents do not include that contains a provision in the approval nature of a "due-on-encumbrance" clause (including, without limitation, any mezzanine financing of the lender related Borrower or the exercise related Mortgaged Property or any sale or transfer of lender discretion preferred equity in such Borrower or its direct or indirect owners), that by its terms: (1) provides that such Serviced Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other than confirming the satisfaction of the other conditions to the transaction set forth in encumbrance on the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or Mortgaged Property; (2) requires the consent of the Mortgagee mortgagee or satisfaction of certain conditions to the creation of any such additional lien or other encumbrance on the related Mortgaged Property; or (3) provides that such Serviced Loan may be further encumbered provided that certain conditions set forth in order to incur subordinate debtthe loan documents have been satisfied, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Serviced Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Serviced Loan (x) to accelerate the payments thereon, (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without Standard or (z) determine whether the need to obtain any consent or approval hereunder conditions set forth in clauses (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions a)(i)(3) above have been met; provided that, subject satisfied. Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause (including, but not limited to, making any determination that the conditions set forth in clauses (a)(i)(3) and (a)(ii)(3) have been satisfied), unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Serviced Loans in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “related "due-on-sale” " or “"due-on-encumbrance” " clause thereunder(including, but not limited to, making any determination that the conditions set forth in clauses (a)(i)(3) and (a)(ii)(3) have been satisfied) without first obtaining the consent of the Special Servicer. The Special Servicer's consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the immediately succeeding sentence and all information reasonably requested by the Special Servicer and the Special Servicer shall not have responded in writing, via fax or e mail within 15 Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties). In connection with the request set forth above, the applicable Master Servicer shall provide to the Special Servicer written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Special Servicer shall reasonably request and a request for approval by the Special Servicer.
(in ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the case consent of the Directing Certificateholder for (a) any Non-Partitioned Loan that is a Performing Serviced Mortgage Loan or (b) for any Specially Serviced Loan that is a Non-Partitioned Loan) or . Consent by the applicable Directing Certificateholder shall be deemed given if the Special Servicer (shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the case immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e mail within ten Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) With respect to any Serviced Whole Loan, (A) the Master Servicer with respect to those time periods when such Loan is a Performing Serviced Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Special Servicer, which consent shall not be given without the Special Servicer first obtaining the consent of the related Controlling Holder, and (B) the Special Servicer with respect to those time periods when either such Loan is a Specially Serviced Mortgage Loan) Loan shall prepare all documents necessary and appropriate for such purposes and shall coordinate with not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the related Borrower for Controlling Holder. Consent by a Controlling Holder shall be deemed given if the due execution Master Servicer or Special Servicer, as applicable, shall have provided such Controlling Holder written notice of the matter together with all of the information set forth in the last sentence of the first paragraph of clause (ii) above and delivery such Controlling Holder shall not have responded in writing, via fax or email within ten Business Days of such documentsrequest.
(civ) [Reserved].
(v) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a), in connection if any Mortgage Loan with an outstanding principal balance of greater than $5,000,000 (other than with respect to any transfer of an interest in Non-Serviced Mortgage Loan, which is governed by the related Borrower under a Performing Non-Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval Pooling Agreement):
(1) represents greater than 5% of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms then outstanding principal balance of the related Mortgage Loan Documents without the exercise Pool;
(2) has an outstanding principal balance of any lender approval or discretion other greater than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower$20,000,000; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if or
(i3) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten largest Mortgage Loans (by Stated Principal Balance) in the Mortgage PoolTrust Fund based on outstanding principal balance, has a Cut-off Date Principal Balance in excess of $20,000,000then neither the Master Servicer nor Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates and, if a Stated Principal Balance that equals Serviced Whole Loan is involved, to any Class of Serviced Companion Loan Securities.
(vi) Notwithstanding the foregoing, solely with respect to the consent or exceeds 5waiver of any "due-on-encumbrance" clause as described in Section 3.08(a), if any Mortgage Loan:
(1) represents greater than 2% of the then-aggregate Stated Principal Balance then outstanding principal balance of the Mortgage Pool, or
(2) is at the time one of the ten largest Mortgage Loans (by outstanding principal balance) in the Mortgage Pool or a Serviced Loan Combination is involved and has an outstanding principal balance of greater than $20,000,000, or
(3) after taking into consideration any additional indebtedness secured by the related Other Pooling and Servicing Agreement Mortgaged Property, the loan-to-value ratio for such Mortgage Loan would require be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor the Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-encumbrance" clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Group unless the Master Servicer or Special Servicer, as applicable, shall have obtained written confirmation from each Rating Agency Confirmation if that such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would action shall not result in a change in control qualification (if applicable), downgrade or withdrawal of the Borrower (for these purposes, “control” when used with respect rating then assigned by such Rating Agency to any specified person means Class of Certificates and, if a Serviced Whole Loan is involved, to any Class of Serviced Companion Loan Securities.
(vii) In the power to direct event that the management and policies of such personMaster Servicer or Special Servicer intends or is required, directly or indirectly, whether through in accordance with the ownership of voting securitiespreceding clauses, by contract the loan documents or otherwise applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to which the original Mortgagor and any original guarantors are released from liability, and the terms “controlling” transferee and “controlled” have meanings correlative to any new guarantors are substituted therefor and become liable under the foregoing), then the applicable Master Servicer shall not consent to such transfer unless Mortgage Note and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any related costs and expenses incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (such agreement and forward the costs of which are to be payable by the related Borrower original thereof to the extent provided Trustee for inclusion in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationFile.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc. Series 2006-1)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or As to each Serviced Loan Combination expressly permits that contains a provision in the assignment nature of a (i) "due-on-sale" clause (which includes, without limitation, sales or transfers of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, (in full or in part) or the transfers sale, transfer, pledge or hypothecation of interests direct or indirect interest in the related BorrowerBorrower or its owners), in each case which by its terms (1) provides that such Serviced Loan shall (or may at the mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Mortgagor; (2) provides that such Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice mortgagee or satisfaction of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, certain conditions in connection with any such approval sale or waiverother transfer, consent or agree to any modification, waiver or amendment of any term or provision of for so long as such Serviced Mortgage Loan that would result is included in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor the Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan Fund or (y)(a3) provides that such Serviced Loan may be assumed or transferred without the transaction is permitted under consent of the related Mortgage Loan Documents and (b) the mortgagee provided that certain conditions to the transaction that are set forth in the related Mortgage loan documents are satisfied, or (ii) as to each Serviced Loan Documents do not include that contains a provision in the approval nature of a "due-on-encumbrance" clause (including, without limitation, any mezzanine financing of the lender related Borrower or the exercise related Mortgaged Property or any sale or transfer of lender discretion preferred equity in such Borrower or its direct or indirect owners), that by its terms: (1) provides that such Serviced Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other than confirming the satisfaction of the other conditions to the transaction set forth in encumbrance on the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or Mortgaged Property; (2) requires the consent of the Mortgagee mortgagee or satisfaction of certain conditions to the creation of any such additional lien or other encumbrance on the related Mortgaged Property; or (3) provides that such Serviced Loan may be further encumbered provided that certain conditions set forth in order to incur subordinate debtthe loan documents have been satisfied, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Serviced Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Serviced Loan (x) to accelerate the payments thereon, (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without Standard or (z) determine whether the need to obtain any consent or approval hereunder conditions set forth in clause (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions a)(i)(3) of this paragraph have been met; provided that, subject satisfied. Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause (including, but not limited to, making any determination that the conditions set forth in Section 3.08(a)(i)(3) and Section 3.08 (a)(ii)(3) have been satisfied), unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Loans in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause (including, but not limited to, making any determination that the conditions set forth in Section 3.08(a)(i)(3) and Section 3.08 (a)(ii)(3) have been satisfied) without first obtaining the consent of the Special Servicer. The Special Servicer's consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice along with its written recommendation and analysis of the matter together with all of the information set forth in the immediately succeeding sentence and all information reasonably requested by the Special Servicer and the Special Servicer shall not have responded in writing, via fax or e-mail within 15 Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties). In connection with the request set forth above, the Master Servicer shall provide to the Special Servicer written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Special Servicer shall reasonably request and a request for approval by the Special Servicer.
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Directing Certificateholder for (a) any Non-Partitioned Loan and/or any Post CAP A/B Whole Loan that is a Performing Serviced Loan or (b) for any Specially Serviced Loan that is a Non-Partitioned Loan or a Post CAP A/B Whole Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e-mail within ten Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) With respect to any A/B Whole Loan: (A) the Master Servicer with respect to those time periods when such Loan is a Performing Serviced Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Special Servicer, which consent shall not be given without the Special Servicer first obtaining the consent of the related Controlling Holder, and (B) the Special Servicer with respect to those time periods when either such Loan is a Specially Serviced Loan shall not waive any right that it may have, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the related Controlling Holder. Consent by a Controlling Holder shall be deemed given if the Master Servicer or Special Servicer, as applicable, shall have provided such Controlling Holder written notice of the matter together with all of the information set forth in the last sentence of Section 3.08(a)(ii) and such Controlling Holder shall not have responded in writing, via fax or email within ten Business Days of such request.
(iv) [RESERVED].
(v) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a), if any Mortgage Loan (other than with respect to any Non-Serviced Mortgage Loan, which is governed by the related Non-Serviced Loan Servicing Agreement):
(1) has a then outstanding principal balance of greater than $5,000,000 and represents greater than 5.0% of the then outstanding principal balance of the Mortgage Pool;
(2) has a then outstanding principal balance of greater than $35,000,000; or
(3) has a then outstanding principal balance of greater than $5,000,000 and is one of the ten largest Mortgage Loans in the Mortgage Pool based on the then outstanding principal balance of the Mortgage Pool, then neither the Master Servicer nor Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vi) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-encumbrance" clause as described in Section 3.08(a), if any Mortgage Loan (other than with respect to any Non-Serviced Mortgage Loan, which is governed by the related Non-Serviced Loan Servicing Agreement):
(1) represents greater than 2.0% of the then outstanding principal balance of the Mortgage Pool;
(2) is at the time one of the ten largest Mortgage Loans or Cross-Collateralized Set of Mortgage Loans by outstanding principal balance in the Mortgage Pool or has a then outstanding principal balance of greater than $20,000,000; or
(3) after taking into consideration any additional indebtedness secured by the related Mortgaged Property and any mezzanine debt, the loan-to-value ratio for such Mortgage Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor the Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-encumbrance" clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Set unless the Master Servicer or Special Servicer, as applicable, shall have obtained written confirmation from each Rating Agency that such action shall not result in a qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates or Companion Loan Securities (if applicable).
(vii) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2007-5)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced As to each Mortgage Loan or Serviced Loan Combination expressly permits that contains a provision in the assignment nature of the related Mortgaged Property toa (i) "due-on-sale" clause, and assumption of that by its terms (1) provides that such Mortgage Loan by, another Person, shall (or may at the transfers of interests in the related Borrower, in each case mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgagor; or (2) provides that such Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer mortgagee in connection with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consentsale or other transfer, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group so long as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then included in the Trust Fund, or (bii) is one of the ten largest as to each Mortgage Loans then Loan that contains a provision in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver nature of a "due-on-sale provision is involvedencumbrance" clause, then, subject to that by its terms: (1) provides that such Mortgage Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) Property; or (ii2) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order mortgagee to incur subordinate debtthe creation of any such additional lien or other encumbrance on the related Mortgaged Property, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Mortgage Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject . Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause, unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Mortgage Loans in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without first obtaining the consent of the Special Servicer. The Special Servicer's consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the last sentence of the first paragraph of clause (ii) below and the Special Servicer shall not have responded in writing, via fax or e mail within ten Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties).
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Directing Certificateholder for (a) any Performing Loan that has a then Stated Principal Balance of $2,500,000 or greater or (b) for any Specially Serviced Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e mail within ten Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) [Reserved].
(iv) [Reserved].
(v) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a) hereof, if any Mortgage Loan:
(1) represents greater than 5% of the then outstanding principal balance of the Mortgage Pool;
(2) has an outstanding principal balance of greater than $20,000,000; or
(3) is one of the ten largest Mortgage Loans in the Trust Fund based on outstanding principal balance, then neither the Master Servicer nor Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vi) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-encumbrance" clause as described in Section 3.08(a) hereof, if any Mortgage Loan:
(1) represents greater than 2% of the then outstanding principal balance of the Mortgage Pool, or
(2) is at the time one of the ten largest loans (by outstanding principal balance) in the Mortgage Pool, and
(3) after taking into consideration any additional indebtedness secured by the related Mortgaged Property, the loan-to-value ratio for such Mortgage Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor the Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-encumbrance" clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Group unless the Master Servicer or Special Servicer, as applicable, shall have obtained written confirmation from each Rating Agency that such action shall not result in a qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vii) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the Mortgage Loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Comm Mort Inc Pass Throu Certs Series 2004 2)
Enforcement of Alienation Clauses. (a) If the provisions Upon receipt of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation waiver in respect of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c)provision, the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide forward such request to the Special Servicer. With respect to all Mortgage Loans and Companion Loans, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers of interests in the related Mortgagor, unless the Special Servicer with (x) written after providing the Controlling Class Representative 12 Business Days notice of any Borrower request for such assignment and assumption or such encumbranceproposed action pursuant to Section 6.11, (y) which notice shall be given by the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any no later than three Business Days after receipt of such consentrequest) has determined, (2) consistent with the applicable Special Servicer shall decide whether to withhold or grant Servicing Standard, that waiver of such consent restrictions would be in accordance with the Servicing Standard Standard. Promptly after the Special Servicer (and subject after providing the Controlling Class Representative 12 Business Days notice of such proposed action pursuant to Section 3.246.11, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) which notice shall be given by the Special Servicer no later than three Business Days after receipt of such request) has made any such determination, the time period provided Special Servicer shall deliver to the Trustee, the Rating Agencies and each other party hereto an Officers' Certificate setting forth the basis for such determination. The Special Servicer shall not exercise any such waiver in respect of a due-on-encumbrance provision of any Mortgage Loan without receiving the related Intercreditor Agreement) prior written confirmation from the Rating Agencies that such action would not result in a downgrading, qualification or withdrawal of the applicable ratings then assigned to the Certificates. The Special Servicer’s receipt Servicer shall not exercise any such waiver in respect of a due-on-sale provision of any Mortgage Loan (i) for which the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, are equal to or greater than 5% of the aggregate Stated Principal Balance of all Mortgage Loans or $20,000,000 or (ii) which is one of the ten largest Mortgage Loans as of the date of the waiver (by Stated Principal Balance), without receiving the prior written confirmation from the applicable Master Servicer Rating Agencies that such action would not result in a downgrading, qualification or withdrawal of any of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available ratings then assigned to the applicable Master Servicer in order Certificates. With respect to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or a waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loansprovision, if any, that are in the same Cross-Collateralized Group as event that such Mortgage Loan or have does not meet the same Borrower as such criteria set forth in the prior sentence, and the Mortgage Loan or have Borrowers that are known to be affiliated documents contain a requirement for Rating Agency approval, the Special Servicer may waive such requirement without Rating Agency approval in accordance with the Borrower under such Mortgage LoanServicing Standard.
(b) is one Notwithstanding any other provisions of this Section 3.08, the ten largest Mortgage Loans then Master Servicer (without the Special Servicer's consent) or the Special Servicer, as applicable, may grant, without any Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor's request for consent to subject the Trustrelated Mortgaged Property to an easement or right-of-way for utilities, has a Cut-off Date Principal Balance in excess access, parking, public improvements or another purpose, and may consent to subordination of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither to such easement or right-of-way provided the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable the Special Servicer, as applicable, shall be permitted to deny have determined in accordance with the Servicing Standard that such easement or right-of-way shall not materially interfere with the then-current use of the related request;Mortgaged Property, or the security intended to be provided by such Mortgage, the related Mortgagor's ability to repay the Mortgage Loan, or materially or adversely affect the value of such Mortgaged Property or cause the Mortgage Loan to cease to be a qualified mortgage loan for REMIC purposes.
(Fc) neither Within ninety (90) days of the applicable Master Servicer (Closing Date, with respect to each of the Mortgage Loans covered by an environmental insurance policy, the Master Servicer shall notify the insurer under such environmental insurance policy and take all other action necessary for the Trustee, on behalf of the Certificateholders, to be an insured (and for the Master Servicer, on behalf of the Trust Fund, to make claims) under such environmental insurance policy. In the event that the Master Servicer has actual knowledge of any event (an "Insured Environmental Event") giving rise to a Performing Serviced claim under any environmental insurance policy in respect of any Mortgage Loan andcovered thereby, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Master Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in accordance with the terms of such environmental insurance policy and the Servicing Standard, timely make a claim thereunder with the appropriate insurer and shall take such other actions in accordance with the Servicing Standard which are necessary under such environmental insurance policy in order to realize the full value thereof for the benefit of the Certificateholders. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such approval claim under an environmental insurance policy shall be paid by the Master Servicer and shall be reimbursable to it as a Servicing Advance. With respect to each environmental insurance policy that relates to one or waivermore Mortgage Loans, consent the Master Servicer shall review and familiarize itself with the terms and conditions relating to enforcement of claims and shall monitor the dates by which any claim must be made or agree any action must be taken under such policy to any modification, waiver or amendment realize the full value thereof for the benefit of the Certificateholders in the event the Master Servicer has actual knowledge of an Insured Environmental Event giving rise to a claim under such policy. In the event that the Master Servicer receives notice of any term termination of any environmental insurance policy that relates to one or provision more Mortgage Loans, the Master Servicer shall, within five Business Days after receipt of such Serviced Mortgage Loan that would result notice, notify the Special Servicer, the Controlling Class Representative, the Rating Agencies and the Trustee of such termination in an Adverse REMIC Event writing. Upon receipt of such notice, the Master Servicer with respect to any REMIC Pool or an Adverse Grantor Trust Event non-Specially Serviced Mortgage Loans, and the Special Servicer with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer Specially Serviced Mortgage Loans, shall not consent to the applicable Master Servicer’s recommendation described address such termination in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied accordance with Section 3.24 and/or Section 3.26, 3.07(a) in the same manner as applicable. Notwithstanding it would the foregoing, in no event will the applicable Master Servicer’s approval termination of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted any other Insurance Policy required under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender documents. Any legal fees, premiums or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Coout-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, of-pocket costs incurred in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), Standard in connection with any transfer a resolution of such termination of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs environmental insurance policy shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer and shall be entitled reimbursable to collect and receive from Borrowers any customary fees in connection with such transfers of interest it as Additional Master a Servicing CompensationAdvance.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Pass THR Cer Ser 2001-C3)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such Upon receipt of any request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation waiver in respect of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provision, the Master Servicer, with respect to Mortgage Loans (other than the Non-Serviced Mortgage Loans) that are not Specially Serviced Mortgage Loans, and the Special Servicer, with respect to Specially Serviced Mortgage Loans, shall promptly analyze such waiver, including the preparation of written materials in connection with such analysis, and will close the related transaction, subject to the consent rights (if any) of each Companion Holder pursuant to the related Intercreditor Agreement as provided that in this Section 3.08. With respect to all Mortgage Loans other than Specially Serviced Mortgage Loans and the Non-Serviced Mortgage Loans, the Master Servicer or, in the case of Specially Serviced Mortgage Loans, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers of interests in the related Mortgagor, unless following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), its receipt of a request of a waiver in respect of a due-on-sale or due-on-encumbrance provision the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained (with the written consent of the applicable Special Servicer Servicer, which consent shall be deemed given if not denied within the later of (it being understood and agreed that (1a) 15 Business Days after the applicable Special Servicer’s receipt of the written recommendation of the Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment action and assumption or such encumbrance, (y) any additional information the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request for the analysis of such request (such recommendation and information may be delivered in order an electronic format reasonably acceptable to withhold or grant any such consent, (2the Master Servicer and the Special Servicer) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3b) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time Controlling Class Representative’s receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative may reasonably request for the analysis of such request, which notice shall be given by the Special Servicer no later than 10 Business Days after the commencement of the 15 Business Day period provided for described in the related Intercreditor Agreementpreceding clause (a)) or the Special Servicer (with the written consent of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decisionControlling Class Representative, such which consent shall be deemed given if not denied within five (5) Business Days after the Controlling Class Representative’s receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative may reasonably request for the analysis of such request), as applicable, has determined, consistent with the Servicing Standard, that the waiver of such restrictions would be in accordance with the Servicing Standard. Promptly after the Master Servicer (with the written consent of the Special Servicer to have been granted;
the extent required in the preceding sentence) or the Special Servicer (Bwith the written consent of the Controlling Class Representative to the extent required in the preceding sentence), as applicable, has made any such determination, the Master Servicer or the Special Servicer shall deliver to the Trustee, the Rating Agencies and each other party hereto an Officer’s Certificate setting forth the basis for such determination. Neither the Master Servicer nor the Special Servicer shall exercise (and the Special Servicer shall not consent to) if approval of an assignment and assumption or any such waiver in respect of a due-on-sale encumbrance provision is involved of any Mortgage Loan (i) with respect to which the aggregate of the Stated Principal Balance of such Mortgage Loan and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, are one of the ten largest Mortgage Loans or concentrations of Mortgage Loans, if anyas of the date of such waiver request, without receiving prior written confirmation from S&P and Xxxxx’x that are such action would not result in a downgrading, qualification or withdrawal of the same Cross-Collateralized Group as ratings then assigned to the Certificates or (ii) with respect to which (a) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the same Borrower as Mortgagor on such Mortgage Loan, is equal to or in excess of $20,000,000, (b) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have Borrowers that are known been made to be Mortgagors affiliated with the Borrower under Mortgagor on such Mortgage Loan, are greater than 2% of the aggregate Stated Principal Balance of all Mortgage Loans, (c) such Mortgage Loan is one of the ten largest Mortgage Loans then in as of the Trustdate of the waiver (by Stated Principal Balance), or (d) such Mortgage Loan has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio Value Ratio (including existing and proposed calculated to include the additional debtindebtedness secured by any encumbrance) that is equal to or greater than 85% and a Debt Service Coverage Ratio (calculated to include the additional debt from any encumbrance) of 1.2x or (d) has an aggregate debt service coverage ratio (including less, without receiving a prior written confirmation from S&P that such action would not result in a downgrading, qualification or withdrawal of the debt service on ratings then assigned to the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or Certificates. With respect to a waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable lawprovision, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume waive any such costs restriction without receiving prior written confirmation from S&P, Xxxxx’x and Fitch that such action would not result in a downgrading, qualification or expenses) and withdrawal of the ratings then assigned to the Certificates; provided that, if the related Borrower refuses Mortgage Loan (a) does not have an aggregate Stated Principal Balance (including the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to pay any Mortgagors affiliated with the Mortgagor on such costs and expenses then Mortgage Loan) equal to or in excess of $35,000,000 (or $25,000,000 with respect to Xxxxx’x), (b) does not have an aggregate Stated Principal Balance (including the applicable Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan) greater than 5% of the aggregate Stated Principal Balance of all Mortgage Loans or (c) is not one of the ten largest Mortgage Loans as of the date of the waiver (by Stated Principal Balance), the Master Servicer or applicable the Special Servicer, as applicable, shall be permitted to deny may waive such requirement without confirmation by S&P in accordance with the related request;
Servicing Standard; provided, further, that, if the Mortgage Loan does not meet the criteria set forth in clause (Fii) neither of the applicable immediately preceding sentence, the Master Servicer (or Special Servicer, as applicable, may waive such requirement without approval by S&P or Xxxxx’x in accordance with respect to a Performing Serviced the Servicing Standard; provided, further, that, if the Mortgage Loan andis not one of the ten largest Mortgage Loans (by Stated Principal Balance, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (including all other Mortgage Loans that are cross-collateralized and cross-defaulted with respect to a Specially Serviced such Mortgage Loan) shallas of the date of the waiver, the Master Servicer or Special Servicer, as applicable, may waive such requirement without approval by Fitch in connection accordance with the Servicing Standard. With respect to each Co-Lender Loan, no waiver of a due-on-sale or due-on-encumbrance provision will be effective unless the Master Servicer or Special Servicer, as applicable, first consults with the related Subordinate Companion Holder if required under the applicable Intercreditor Agreement. The Special Servicer and the Rating Agencies shall be notified upon the completion of any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with syndication.
(ii) With respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to Tenants-in-Common Loan, the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause , on behalf of the Trustee as the mortgagee of record, shall review (A) aboveeach request for a sale, transfer or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicersyndication of any Mortgagor’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth equity interests in the related Mortgage Loan Documents do not include Mortgagor and shall promptly analyze such request, including, with regard to each proposed Mortgagor transferee, the approval of the lender or the exercise of lender discretion (financial statements, credit information, organizational documents and other than confirming the satisfaction of the other conditions to the transaction written materials set forth in on the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoingapplicable schedule on Exhibit Z hereto, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, neverthelessdetermine, in accordance with the Servicing Standard, without whether the need requested sale, transfer or syndication meets the applicable requirements and to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with consents required under any related “Intercreditor Agreement, and (B) the corresponding waiver of any applicable due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in sale or due-on-encumbrance provision and determine whether approval of such waiver is consistent with the Servicing Standard. Promptly after the Master Servicer has made any such caseaffirmative determination that such sale, all associated costs and expenses are covered without any expense transfer or syndication meets the applicable requirements on Exhibit Z hereto, the Master Servicer shall deliver to the TrustSpecial Servicer, the Trustee, the Rating Agencies and each other party hereto, no later than five (5) Business Days prior to such sale, transfer or syndication, an Officer’s Certificate in the form of Exhibit AA hereto setting forth notice of the approval or disapproval and the basis for such determination, including evidence of compliance with each of the requirements for such Mortgage Loan described on Exhibit Z hereto; provided, further, that it is understood and agreed that the Master Servicer shall make reasonable efforts to deliver a complete package five (5) Business Days prior to such sale, transfer or syndication (provided, however, that any documents not delivered with the Officer’s Certificate will be delivered by the Master Servicer as soon as reasonably possible, and the Special Servicer shall rely on the initial documents sent in such package and the Officer’s Certificate delivered by the Master Servicer for its review).
(b) Notwithstanding any other provisions of this Section 3.08, the Master Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgage Loans and the Non-Serviced Mortgage Loans) (without the Special Servicer’s consent) or the Special Servicer (with respect to Specially Serviced Mortgage Loans) may grant, without any Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor’s request for consent to subject the related Mortgaged Property to an easement or right-of-way for utilities, access, parking, public improvements or another purpose, and may consent to subordination of the related Mortgage Loan to such easement or right-of-way provided the Master Servicer or the Special Servicer, as applicable, shall have determined in accordance with the Servicing Standard that such easement or right-of-way shall not materially interfere with the then-current use of the related Mortgaged Property, or the security intended to be provided by such Mortgage, the related Mortgagor’s ability to repay the Mortgage Loan, or materially or adversely affect the value of such Mortgaged Property or cause the Mortgage Loan to cease to be a “qualified mortgage” for REMIC purposes.
(c) Within ninety (90) days of the Closing Date, with respect to each of the Mortgage Loans (other than the Non-Serviced Mortgage Loans) covered by an environmental insurance policy, if any, the Master Servicer shall notify the insurer under such environmental insurance policy and take all other action necessary for the Trustee, on behalf of the Certificateholders, to be an insured (and for the Master Servicer, on behalf of the Trust Fund, to make claims) under such environmental insurance policy. In the event that the Master Servicer has actual knowledge of any event (an “Insured Environmental Event”) giving rise to a claim under any environmental insurance policy in respect of any Mortgage Loan covered thereby, the Master Servicer shall, in accordance with the terms of such environmental insurance policy and the Servicing Standard, timely make a claim thereunder with the appropriate insurer and shall take such other actions in accordance with the Servicing Standard which are necessary under such environmental insurance policy in order to realize the full value thereof for the benefit of the Certificateholders. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any permitted assumption such claim under an environmental insurance policy shall be paid by the Master Servicer and shall be reimbursable to it as a Servicing Advance. With respect to each environmental insurance policy that relates to one or more Mortgage Loans (other than the Non-Serviced Mortgage Loans), the Master Servicer shall review and familiarize itself with the terms and conditions relating to enforcement of claims and shall monitor the dates by which any claim must be made or any action must be taken under such policy to realize the full value thereof for the benefit of the Certificateholders in the event the Master Servicer has actual knowledge of an Insured Environmental Event giving rise to a claim under such policy. In the event that the Master Servicer receives notice of any termination of any environmental insurance policy that relates to one or more Mortgage Loans (other than the Non-Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunderLoans), the applicable Master Servicer shall, within five Business Days after receipt of such notice, notify the Special Servicer, the Controlling Class Representative, the related Companion Holder (in the case of a Performing Serviced Mortgage Co-Lender Loan) or ), the applicable Special Rating Agencies and the Trustee of such termination in writing. Upon receipt of such notice, the Master Servicer (in the case of a with respect to non-Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loans (other than the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(aNon-Serviced Mortgage Loans), and the Special Servicer with respect to Specially Serviced Mortgage Loans, shall address such termination in connection accordance with any transfer of an interest Section 3.07(a) in the related Borrower same manner as it would the termination of any other Insurance Policy required under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without documents. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Servicing Standard in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including connection with a consent to transfer to any subsidiary or affiliate resolution of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is termination of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs environmental insurance policy shall be paid by the Master Servicer and reimbursed shall be reimbursable to it as a Servicing Advance.
(d) For the avoidance of doubt, any servicing obligation set forth under this Section 3.08 of the Master Servicer or Special Servicer, as applicable, for any Co-Lender Loan shall also apply to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensationrelated Companion Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2006-C28)
Enforcement of Alienation Clauses. (a) If Subject to the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documentssecond following paragraph, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or and the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation ), on behalf of the relevant Trustee as the mortgagee of record, shall enforce any "due-on-sale clause sale" or "due-on-encumbrance clause or (ii) if encumbrance" clauses and any other restrictions contained in the best economic interest related Mortgage or other related loan document on transfers or further encumbrances of the Trust andrelated Mortgaged Property and on transfers of interests in the related Borrower, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), unless the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer Servicer, as the case may be, has (it being understood and agreed i) determined, in its reasonable judgment, that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice waiver of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent restrictions would be in accordance with the Servicing Standard and (ii) complied with the applicable requirements, if any, of SECTION 3.20(a) and SECTION 3.24; PROVIDED that, subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the Mortgage Loan Documents and applicable Special Servicer’s receipt from law, neither the applicable Master Servicer of nor the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to the applicable Master Servicer withhold, in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a accordance with any related "due-on-sale provision is involved encumbrance" clause under any Mortgage Loan (other than a Co-op Mortgage Loan as to which the NCBFSB Subordinate Debt Conditions have been satisfied) until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates; and PROVIDED, FURTHER, that, if the affected Serviced Mortgage Loan is a Mortgage Loan that (Loan, individually or together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten 10 largest Mortgage Loans then in the Trust, trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved18,000,000, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the any related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a "due-on-encumbrance provision sale" clause under any Mortgage Loan until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates; and PROVIDED, FURTHER, that, subject to the related Mortgage Loan Documents and applicable law, the applicable Master Servicer shall not waive any right it has, or grant any consent it is involvedotherwise entitled to withhold, thenin accordance with any related "due-on-encumbrance" clause under any Mortgage Loan (other than a Co-op Mortgage Loan as to which the NCBFSB Subordinate Debt Conditions have been satisfied) until it has delivered to the applicable Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the applicable Special Servicer (the giving of which consent shall be subject to the Servicing Standard and SECTION 3.24), which consent shall be deemed given if not denied in writing within 10 Business Days of receipt by the applicable Special Servicer of the applicable Master Servicer's written recommendation and analysis and any additional information requested by the applicable Special Servicer or the Controlling Class Representative; and PROVIDED, FURTHER, that, subject to the related Mortgage Loan Documents and applicable law, the applicable Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Mortgage Loan until it has received the consent of the applicable Special Servicer (the giving of which consent shall be subject to the Servicing Standard and SECTION 3.24), which consent shall be deemed given if not denied in writing within 10 Business Days of receipt by the applicable Special Servicer of the applicable Master Servicer's written recommendation and analysis and any additional information requested by the applicable Special Servicer or the Controlling Class Representative; and PROVIDED, FURTHER, that, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the any related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a "due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, sale" or "due-on-encumbrance" clause under any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval , or waiver with respect to approve the assumption of any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into , unless in any such approval or waiver unless case, all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) ); and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special ServicerPROVIDED, as applicableFURTHER, shall be permitted to deny the related request;
(F) that neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer shall (to the extent that it is within the control thereof to prohibit such event) consent to the transfer of any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower or (ii) it obtains the consent of the Controlling Class Representative, which consent shall be deemed given if not denied in writing within 10 Business Days of receipt by the Controlling Class Representative of written notice of such action and all reasonably requested information related thereto. In the case of any Mortgage Loan, the applicable Master Servicer and the applicable Special Servicer shall each provide the other with respect all such information as each may reasonably request in order to perform its duties under this section. In connection with any permitted assumption of any Mortgage Loan or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the applicable Master Servicer (in the case of a Performing Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall, in connection shall prepare all documents necessary and appropriate for such purposes and shall coordinate with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision the related Borrower for the due execution and delivery of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion)documents. Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Co-op Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmationratings confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB NCBFSB Subordinate Debt Conditions have been metmet (as certified in writing to the Trustee and the Controlling Class Representative by the Co-op Master Servicer no later than five Business Days prior to the making of the subject subordinate loan without right of reimbursement from the Trust) which certification shall include notice of the circumstances of the waiver, including information necessary for the Controlling Class Representative to determine whether the NCBFSB Subordinate Debt Conditions have been satisfied); provided PROVIDED that, subject to the related Mortgage Loan Documents and applicable law, the NCB Co-op Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” " clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In . If a Master Servicer or Special Servicer collects an assumption fee or an assumption application fee in connection with any permitted assumption transfer or proposed transfer of any Serviced Mortgage Loan interest in a Borrower or Serviced Loan Combination a Mortgaged Property, then such Master Servicer or waiver Special Servicer, as applicable, will apply that fee to cover the costs and expenses associated with that transfer or proposed transfer that are not otherwise paid by the related Borrower and that would otherwise be payable or reimbursable out of a “due-on-sale” or “due-on-encumbrance” clause thereunderthe Trust Fund, including any Rating Agency fees and expenses to the extent such fees and expenses are collectible under applicable law and the applicable Master Servicer or Special Servicer, as appropriate, fails to enforce such requirement in accordance with the related Mortgage Loan Documents. Any remaining portion of such assumption fee (in such remaining portion, a "NET ASSUMPTION FEE") or of such assumption application fee (such remaining portion, a "NET ASSUMPTION APPLICATION FEE") will be applied as additional compensation to the case of a Performing Serviced Mortgage Loan) applicable Master Servicer or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate accordance with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, SECTION 3.11. Neither the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of nor the applicable Special Servicer (shall waive any assumption fee or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessassumption application fee, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided it would constitute additional compensation for in the related Mortgage Loan Documentsother such party, which provisions shall not be waived by without the applicable Master Servicer, and, if not paid, consent of such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensationother party.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion that is a Pooled Mortgage Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer (and, if the Shell Plaza Loan Group is involved, to the Shell Plaza Controlling Party) with (x) written notice of any Borrower request for such assignment and assumption or such encumbranceassumption, (y) the applicable Master Servicer’s written 's recommendations and analysis, and (z) with all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.243.24 and Section 3.25, and/or Section 3.26 if and as applicable), ) and (3) if any such consent has not been expressly denied within fifteen (15) seven Business Days (or at least five (5) Business Days after the time period provided for or, in the related Intercreditor Agreementcase of the Shell Plaza Loan Group, such longer period of time, if any, that is provided in Section 3.25(a)) of the applicable Special Servicer’s 's receipt from the applicable Master Servicer of the applicable such Master Servicer’s written 's recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted);
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Pooled Mortgage Loan that (together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan) is one of the ten largest Pooled Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Pooled Mortgage Loan and, if applicable, any related Performing other than a Specially Serviced Pari Passu Companion Pooled Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent it has received written confirmation from each Pari Passu Companion Rating Agency that such action would not result in an Adverse Rating Event with respect to the related Serviced Pari Passu Companion Loan Securities; andany Class of Rated Certificates;
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation that such approval or waiver is the subject action would not result in an Adverse Rating Event with respect to any Class of a Rating Agency Confirmation (subject Rated Certificates from Fitch, with respect to Section 3.27) if the related Serviced any Pooled Mortgage Loan that is one of the ten largest Pooled Mortgage Loans then in the Trust Fund, by principal balance, and from Xxxxx'x, with respect to any Serviced Pooled Mortgage Loan that (a1) represents 2% or more of the then-then aggregate principal balance of all of the Pooled Mortgage Loans then in the Trust Fund, (b2) is one of the ten largest Pooled Mortgage Loans then in the Trust Fund by principal balance, (c3) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d4) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x1.2x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable a Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable a Special Servicer, it has obtained the consent of the Subordinate Controlling Class RepresentativeRepresentative if and to the extent required under Section 3.24 or, if the matter relates to the Shell Plaza Loan Group, the consent of the Shell Plaza Controlling Party, if and to the extent required under Sections 3.24 and/or Section 3.263.25, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any confirmation(s) of the absence of an Adverse Rating Agency ConfirmationEvent) are covered without any expense to the Trust or (in the case of a Serviced Mortgage Loan CombinationGroup) any expense to any related Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an any Adverse Grantor Trust Event with respect to the either Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable a Master Servicer’s 's recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or or Section 3.263.25, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s 's approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer if (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretionexercise). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the The applicable Master Servicer shall have the right to grant its consent to any transfers of an interest in the same without Borrower under a Performing Serviced Mortgage Loan, to the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if extent such transfer is allowed under the terms of the related Mortgage Loan Documents (without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion), including a any consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Pooled Mortgage Loan that, together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan, has a Stated Principal Balance that equals or exceeds 5% of the then aggregate Stated Principal Balance of the Mortgage Pool or is one of the then-then current top ten Pooled Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, Pool or has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)%, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency it has received written confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant Agency that such action would not result in an Adverse Rating Event with respect to Section 3.27(k)) any Class of Rated Certificates (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr4)
Enforcement of Alienation Clauses. (a) If the provisions of any The Master Servicer (with respect to Mortgage Loans that are not Specially Serviced Mortgage Loan Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record, shall enforce any "due-on-sale" or Serviced Loan Combination expressly permits "due-on-encumbrance" clauses and any other restrictions contained in the assignment related Mortgage or other related loan document on transfers or further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon unless the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain Servicer, as the relevant information and review and make a determination to either case may be, has (i) disapprove determined, in its reasonable judgment, that waiver of such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent would be in accordance with the Servicing Standard and (and ii) complied with the applicable requirements, if any, of Section 6.11; provided that:
(i) subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of Mortgage Loan Documents and applicable law, neither the applicable Special Servicer’s receipt from the applicable Master Servicer of nor the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to the applicable Master Servicer withhold, in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a accordance with any related "due-on-sale provision is involved and the affected Serviced Mortgage Loan is a encumbrance" clause under any Mortgage Loan that is a Significant Mortgage Loan, or if, taking into account existing debt on the subject Mortgaged Property and the proposed additional debt as if such total debt were a single Mortgage Loan, the Loan-to-Value Ratio is equal to or greater than 85% or the Debt Service Coverage Ratio is equal to or less than 1.2x, unless it receives prior written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of rated Certificates (together with all other Mortgage Loans, if any, except that are in prior written confirmation from Fitch shall not be required unless the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan(A) is one of the ten largest Mortgage Loans then in the TrustMortgage Pool or (B) when combined with any other Mortgage Loans made to Mortgagors that are affiliated to the related Mortgagor, has constitutes one of the ten largest Mortgagor concentrations in the Mortgage Pool based on the then-current outstanding principal balance of all of the Mortgage Loans);
(ii) if the affected Mortgage Loan is a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involvedSignificant Mortgage Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a "due-on-encumbrance provision is involved, then, subject to the related sale" clause under any Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor Class of rated Certificates (except that prior written confirmation from Fitch shall not be required unless the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (bA) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% Mortgage Pool or (dB) has an aggregate debt service coverage ratio (including when combined with any other Mortgage Loans made to Mortgagors that are affiliated to the debt service related Mortgagor, constitutes one of the ten largest Mortgagor concentrations in the Mortgage Pool based on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval then-current outstanding principal balance of an assignment and assumption or all of the Mortgage Loans); provided, that, with respect to a waiver of a due-on-sale provision is involvedprovision, thenin the event that such Mortgage Loan does not meet the criteria set forth in the prior sentence, subject to and the related Mortgage Loan Documents and applicable lawcontain a requirement for Rating Agency approval, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (may waive such requirement without Rating Agency approval in accordance with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable)Servicing Standard;
(Eiii) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” " clause under any Mortgage Loan until it has delivered to the Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 6.11), which consent shall be deemed given if not denied in writing within 10 Business Days after receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information requested by the Special Servicer or the Controlling Class Representative;
(iv) subject to the related Mortgage Loan Documents and applicable law, the Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Mortgage Loan until it has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 6.11), which consent shall be deemed given if not denied in writing within 10 Business Days of receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information requested by the Special Servicer or the Controlling Class Representative;
(v) subject to the related Mortgage Loan Documents and applicable law, neither the Master Servicer nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, pursuant to this paragraphor approve the assumption of any Mortgage Loan, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.Trust (it being understood and agreed that, except as expressly provided herein, neither the Master Servicer nor the Special Servicer shall be obligated to cover or assume any such costs or expenses); and
(bvi) neither the Master Servicer nor the Special Servicer shall (to the extent that it is within the control thereof to prohibit such event) consent to the transfer of any Mortgaged Property that secures a Crossed Group unless (i) all of the Mortgaged Properties securing such Crossed Group are transferred simultaneously by the respective Mortgagor or (ii) it obtains the consent of the Controlling Class Representative, which consent shall be deemed given if not denied in writing within 10 Business Days of receipt by the Controlling Class Representative of written notice of such action and all reasonably requested information related thereto (or, if no information is requested within ten (10) Business Days of receipt of written notice). In the case of any Mortgage Loan, the Master Servicer and the Special Servicer shall each provide the other with all such information as each may reasonably request in order to perform its duties under this section. In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) Servicer, as applicable, shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(cb) Notwithstanding any other provisions of this Section 3.08(a)3.08, in connection the Master Servicer with any transfer of an interest in the related Borrower under a Performing respect to Mortgage Loans which are not Specially Serviced Mortgage Loan or related Serviced Pari Passu Companion Loans (without the Special Servicer's consent, but subject to delivering notice to the Special Servicer and the Controlling Class representative (and with respect to the 00 Xxxx Xxxxxx Xxxxx Mortgage Loan, the applicable Master WW Controlling Holder)) or the Special Servicer shall have the right with respect to grant its Specially Serviced Mortgage Loans, as applicable, may grant, without any Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor's request for consent to subject the same without the related Mortgaged Property to an easement, right-of-way or other similar agreement for utilities, access, parking, public improvements or another purpose, and may consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms to subordination of the related Mortgage Loan Documents without to such easement, right-of-way or other similar agreement provided the exercise of any lender approval Master Servicer or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Special Servicer, as applicable, shall have determined in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated accordance with the Borrower under Servicing Standard that such Mortgage Loaneasement, is one of right-of-way or other similar agreement shall not materially interfere with the then-current top ten Mortgage Loans (use of the related Mortgaged Property, or the security intended to be provided by Stated Principal Balance) in such Mortgage, the related Mortgagor's ability to repay the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000Loan, or has a Stated Principal Balance that equals materially or exceeds 5% adversely affect the value of the then-aggregate Stated Principal Balance of such Mortgaged Property or cause the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are cease to be payable by the related Borrower to the extent provided a qualified mortgage loan for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationREMIC purposes.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Comm Mort Ps THR Certs Ser 2003-Key1)
Enforcement of Alienation Clauses. (a) If If, with respect to any Performing Mortgage Loan, the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits Master Servicer receives a request from a Mortgagor regarding the assignment transfer of the related Mortgaged Property to, and assumption of such Performing Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall promptly notify the Special Servicer of such request, shall evaluate (consistent with the Servicing Standard) the experience and financial condition of the proposed transferee and the status of any conditions to transfer or assumption (as described above) and prepare a report in connection therewith and shall deliver to the Special Servicer such report and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder, within 15 days (or, in the case of a consent to a determination as to whether the conditions precedent to the subject transfer or assumption have been satisfied, within 10 days, or within such longer period as may be necessary to obtain any required consent pursuant to Section 6.11, as and if applicable) of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, in accordance with the Servicing Standard, to withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d) and/or Section 6.11, in each case if and as applicable. If the Special Servicer does not respond within such 15-day period, 10-day period or such longer period as set forth above, as the case may be, such party's consent shall be deemed granted; provided that if the Special Servicer's consent is not withheld, granted or deemed granted within the aforementioned 15-day period or 10-day period, as applicable, because the Special Servicer is in the process of obtaining a consent required pursuant to Section 6.11, then the Special Servicer shall provide notice to the Master Servicer of such process and the estimated time period for completion thereof. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Mortgage Loan and/or (ii) determines, with respect to any Performing Mortgage Loan that by its terms permits transfer and/or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then, in each such case, the Special Servicer shall notify the Master Servicer in writing of such determination, and the Master Servicer shall notify the related Mortgagor that the requested transfer and/or assumption will not be permitted and shall restrict the requested transfer and/or assumption of the subject Performing Mortgage Loan in accordance with the Servicing Standard. If the Special Servicer consents or is deemed to consent to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) in is proposed to be conveyed and/or release the original Mortgagor from liability under such Borrower in violation of the related Performing Mortgage Loan Documents, or if and substitute as obligor thereunder the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of Person to whom the related Mortgaged Property upon has been or is proposed to be conveyed; provided, however, that the satisfaction of specified conditionsMaster Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, prohibits such a further encumbrance except upon or on parity with, the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation lien of the related Mortgage. The Master Servicer shall notify the Trustee, the Special Servicer, each Rating Agency, the Controlling Class Representative, of any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documentsshall be made without the assumption of all other Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable Master Servicer (with respect to law, no assumption of a Performing Serviced Mortgage Loan andshall be made or transfer of interest in a Mortgagor approved, if applicableunless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Performing Serviced Pari Passu Companion LoanMortgagor.
(b) or the applicable Special Servicer (If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall promptly notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d) and/or Section 6.11, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (shall notify the Trustee, the Master Servicer, each Rating Agency, and the Controlling Class Representative, of any assumption or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to no assumption of a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (TIAA Seasoned Commercial Mortgage Trust 2007-C4)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits permit the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits prohibit such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits prohibit such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits permit the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits prohibit such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits prohibit such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) 5 Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the mortgage-backed securities backed by the related Serviced Pari Passu Companion Loan SecuritiesLoan; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-then aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust. Further notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion).
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the The applicable Master Servicer shall have the right to grant its consent to the same consent, without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if ), to any transfers of an interest in the Borrower under a Performing Serviced Mortgage Loan, to the extent such transfer (i) is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower and (ii) is with respect to a Mortgage Loan as to which a Rating Agency Confirmation is not required under Section 3.08(a)(B) or (C) above and does not involve incurring new mezzanine financing or a change in control of the Borrower; provided provided, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-then current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-then aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2013-C16)
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination that expressly permits permits, with the assignment lender's consent, subject to the conditions described in the loan documents, the transfer of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, Person or the transfers of certain interests in such Mortgagor, the related BorrowerMaster Servicer receives a request from a Mortgagor for consent to such a transfer and/or assumption, then the Master Servicer shall promptly obtain relevant information for purposes of evaluating such request. If the Master Servicer determines, consistent with the Servicing Standard, to approve such transfer and/or assumption, then the Master Servicer shall promptly provide to the Special Servicer a copy of such recommendation (which shall include the reason therefor) and the materials upon which such recommendation is based. The Special Servicer shall have the right hereunder, within 15 days of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, to reasonably withhold or grant consent to any such request for such transfer and/or assumption in accordance with the terms of the subject Serviced Mortgage Loan and this Agreement, including, without limitation, the Servicing Standard; provided, that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 6.11 and/or Section 6.11A, in each case upon if and as applicable. If the satisfaction Special Servicer does not respond within such 15-day period, the Special Servicer's consent shall be deemed granted. If the Special Servicer consents or is deemed to have consented to such proposed transfer and/or assumption, the Master Servicer shall process such request of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or Mortgagor; and, in the holders case of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property to, and assumption of such Serviced Mortgage Loan by, another Person, the Master Servicer shall be authorized to enter into an assumption or of interest(s) substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under such Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Master Servicer shall not enter into any such agreement to the extent that any terms thereof would result in such Borrower in violation an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the lien of the related Mortgage. The Master Servicer shall notify the Trustee, the Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of the XX Xxxx Loan Group, the XX Xxxx Non-Trust Mortgage Loan DocumentsNoteholders, or if the provisions of any assumption or substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Mortgagor.
(b) If, with respect to any Performing Serviced Mortgage Loan Combination expressly permits the further encumbrance that contains express restrictions on transfers of the related Mortgaged Property upon and/or transfers of interests in the satisfaction of specified conditionsrelated Mortgagor, prohibits the Master Servicer receives a request from the related Mortgagor for consent to such a further encumbrance except upon transfer, then the satisfaction Special Servicer (and not the Master Servicer), on behalf of specified conditions or fully prohibits the Trustee (as mortgagee of record on behalf of the Certificateholders and, in the case of a XX Xxxx Mortgaged Property, the XX Xxxx Non-Trust Mortgage Loan Noteholders), shall, to the extent permitted by applicable law, enforce such restrictions, unless the Special Servicer has determined, in its reasonable, good faith judgment, that waiver of such restrictions would be in accordance with the Servicing Standard (as evidenced by an Officer's Certificate setting forth the basis for such determination delivered, together with a further encumbranceReview Package in respect thereof, to the Trustee, each Rating Agency, the Controlling Class Representative and, with respect to the XX Xxxx Loan Group, the XX Xxxx Non-Trust Mortgage Loan Noteholders); provided that any such waiver of such restrictions shall be subject to Section 3.08(d), Section 6.11 and/or Section 6.11A, in each casecase if and as applicable. If, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan, the Master Servicer receives a request from a Mortgagor for consent to a transfer of the related Mortgaged Property (other than the Sangertown Square Mortgaged Property) and assumption of such Specially Serviced Mortgage Loan and/or consent to a transfer of interests in the related Mortgagor, the Master Servicer shall obtain immediately notify the relevant information and review and make a determination to either (i) disapprove Special Servicer of such request for approval and deliver to the Special Servicer any documents that the Master Servicer shall have received regarding the proposed transfer and assumption. Subject to Section 3.08(d), Section 6.11 and/or Section 6.11A, in each case if and as applicable, the Special Servicer shall determine whether to grant such consent or to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of an assignment a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or transfer substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or further encumbrance is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the lien of the related Mortgage. The Special Servicer shall notify the Trustee, the Master Servicer, each Rating Agency, the Controlling Class Representative and, with respect to the XX Xxxx Loan Group, the XX Xxxx Non-Trust Mortgage Loan Noteholders, of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Mortgagor.
(c) With respect to all of the Serviced Mortgage Loans, the Special Servicer, on behalf of the Trustee (as mortgagee of record on behalf of the Certificateholders and, in the case of a Borrower request for approval thereofXX Xxxx Mortgaged Property, the XX Xxxx Non-Trust Mortgage Loan Noteholders) and not waive any violation shall, to the extent permitted by applicable law, enforce the restrictions contained in the related loan documents on further encumbrances of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if related Mortgaged Property and/or of interests in the best economic interest of the Trust andrelated Mortgagor, if as applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve unless the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Special Servicer has obtained the consent determined, in its reasonable, good faith judgment, that waiver of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent restrictions would be in accordance with the Servicing Standard (and as evidenced by an Officer's Certificate setting forth the basis for such determination delivered to the Trustee, the Master Servicer, each Rating Agency and, with respect to the XX Xxxx Loan Group, the XX Xxxx Non-Trust Mortgage Loan Noteholders); provided that any such waiver of such restrictions shall be subject to Section 3.243.08(d), Section 6.11 and/or Section 3.26 6.11A, in each case if and as applicable. Whenever the Master Servicer becomes aware of a further encumbrance on a Mortgaged Property, or becomes aware that there is going to be a further encumbrance on a Mortgaged Property, the Master Servicer shall promptly notify the Special Servicer of such further encumbrance and deliver to the Special Servicer all documents and records (or copies thereof) in the Master Servicer's possession regarding the further encumbrance and such other documents (or copies thereof) in the Master Servicer's possession regarding the related Mortgage Loan as the Special Servicer shall reasonably require in order to consider the request. To the extent permitted by the applicable loan documents and applicable law, the Special Servicer may charge the related Mortgagor (and retain to the extent permitted under Section 3.11) a fee in connection with any enforcement or waiver contemplated in this subsection (c).
(d) Notwithstanding anything to the contrary contained in this Section 3.08, but subject to the related loan documents and applicable law, (A) (i) if the then unpaid principal balance of the subject Serviced Trust Mortgage Loan is at least equal to $20,000,000, then neither the Master Servicer nor the Special Servicer shall waive any restrictions contained in the related Mortgage on transfers of the related Mortgaged Property or on transfers of interests in the related Mortgagor, and (3ii) if any such consent has not been expressly denied within fifteen (15w) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) then unpaid principal balance of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected subject Serviced Trust Mortgage Loan is a at least equal to 2% of the then aggregate principal balance of the Mortgage Pool or (x) the subject Serviced Trust Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is then one of the ten largest Trust Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, Mortgage Pool or if a Serviced Loan Combination is involved, then, subject to (y) the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio of the subject Serviced Trust Mortgage Loan (including existing and proposed together with any additional debtloans that would further encumber the related Mortgaged Property and/or interests in the related Mortgagor) that is would be equal to or greater than 85% or (dz) has an the aggregate debt service coverage ratio of the related Mortgaged Property (including taking into account any additional loans that would further encumber the debt service on related Mortgaged Property and/or interests in the existing and proposed additional debtrelated Mortgagor) that is would be less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to then the Special Servicer shall not waive any restrictions contained in the related Mortgage Loan Documents and applicable law, neither on further encumbrances of the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless or of interests in the related Mortgagor, unless, in the case of either (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in above, the case of Special Servicer or the applicable Master Servicer, it has obtained as the consent case may be, shall have received prior written confirmation from S&P that such action would not result in an Adverse Rating Event, and (B) if the subject Serviced Trust Mortgage Loan is then one of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) ten largest Trust Mortgage Loans in the case of the applicable Special ServicerMortgage Pool, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, then neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny waive any restrictions contained in the related request;
(F) neither Mortgage on transfers or further encumbrances of the applicable related Mortgaged Property or on transfers of interests in the related Mortgagor, unless the Master Servicer (with respect to a Performing Serviced Mortgage Loan andor the Special Servicer, if applicableas the case may be, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any shall have received prior written confirmation from Xxxxx'x that such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that action would not result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to Rating Event. Neither the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.nor
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Sec Corp Lb Ubs Com Mort Tr 2003-C8)
Enforcement of Alienation Clauses. (a) If the provisions of any The Master Servicer (with respect to Mortgage Loans that are not Specially Serviced Mortgage Loan Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record, shall enforce any "due-on-sale" or Serviced Loan Combination expressly permits "due-on-encumbrance" clauses and any other restrictions contained in the assignment related Mortgage or other related loan document on transfers or further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon unless the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain Servicer, as the relevant information and review and make a determination to either case may be, has (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance determined, in its reasonable judgment (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent exercised in accordance with the Servicing Standard and which, for the avoidance of doubt, would include a determination that any required conditions to a transfer have been met), that waiver of the lender's rights under such clauses or the waiver of such other restrictions, as applicable, would be in accordance with the Servicing Standard and (ii) complied with the applicable requirements, if any, of Section 6.11 and Section 6.12; provided that:
(i) subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of Mortgage Loan documents and applicable law, neither the applicable Special Servicer’s receipt from the applicable Master Servicer of nor the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to the applicable Master Servicer withhold, in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a accordance with any related "due-on-sale provision encumbrance" clause under any Trust Mortgage Loan that is involved a Significant Mortgage Loan, or if, taking into account existing debt on the subject Mortgaged Property (including any related Non-Trust Loan(s)) and the affected Serviced proposed additional debt as if such total debt were a single mortgage loan, the Loan-to-Value Ratio is equal to or greater than 85% or the Debt Service Coverage Ratio is equal to or less than 1.2x, unless it receives prior written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event (except that prior written confirmation from Fitch and DBRS shall not be required unless the Trust Mortgage Loan is a Significant Mortgage Loan);
(ii) if the affected Trust Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such is a Significant Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents documents and applicable law, neither the applicable Master Servicer (nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Trust Mortgage Loan until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event; provided that, with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision provision, in the event that such Mortgage Loan is involvednot a Significant Mortgage Loan, thenand the Mortgage Loan documents contain a requirement for Rating Agency approval, the Master Servicer or the Special Servicer, subject to Section 6.11 and Section 6.12 may waive such requirement without Rating Agency approval in accordance with the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable)Servicing Standard;
(Eiii) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” " clause under any Trust Mortgage Loan that is not a Specially Serviced Mortgage Loan until it has delivered to the Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 6.11 and Section 6.12, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of a Loan Combination, the Loan Combination Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) after receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information reasonably requested by the Special Servicer or the Controlling Class Representative);
(iv) subject to the related Mortgage Loan documents and applicable law, the Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Trust Mortgage Loan that is not a Specially Serviced Mortgage Loan until it has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 6.11 and Section 6.12 (as applicable), which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of a Loan Combination, the Loan Combination Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) of receipt by the Special Servicer of the Master Servicer's written recommendation and analysis and any additional information reasonably requested by the Special Servicer or the Controlling Class Representative);
(v) subject to the related Mortgage Loan documents and applicable law, neither the Master Servicer nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, pursuant to this paragraphor approve the assumption of any Mortgage Loan, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.Trust (it being understood and agreed that, except as expressly provided herein, neither the Master Servicer nor the Special Servicer shall be obligated to cover or assume any such costs or expenses); and
(bvi) neither the Master Servicer nor the Special Servicer shall (to the extent that it is within the control thereof to prohibit such event) consent to the transfer of any Mortgaged Property that secures a Crossed Loan Group unless (i) all of the Mortgaged Properties securing such Crossed Loan Group are transferred simultaneously by the respective Mortgagor or (ii) it obtains the consent of the Controlling Class Representative, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11 (or, in the case of a Loan Combination, the Loan Combination Controlling Party is entitled to object pursuant to Section 6.12), 15 Business Days, which 15 Business Days shall include the five Business Days specified in the proviso at the end of the first paragraph of Section 6.11) of receipt by the Controlling Class Representative of written notice of such action and all reasonably requested information related thereto (or, if no information is requested, within 10 Business Days (or, if applicable, 15 Business Days) of receipt of written notice). If, in connection with an assumption of any Mortgage Loan, the applicable Mortgage Loan Seller bears the costs and expenses associated with such assumption in accordance with the terms of the applicable Mortgage Loan Purchase Agreement, any costs and expenses subsequently recovered by the Master Servicer from the related Mortgagor in respect of such assumption shall be promptly remitted by the Master Servicer to the applicable Mortgage Loan Seller. In the case of any Mortgage Loan, the Master Servicer and the Special Servicer shall each provide the other with all such information as each may reasonably request in order to perform its duties under this Section. In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Servicer, with respect to Mortgage Loan) or the applicable Special Servicer (in the case of a Loans that are not Specially Serviced Mortgage Loan) Loans, or the Special Servicer, with respect to Specially Serviced Mortgage Loans, shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
. If the Master Servicer or Special Servicer, as applicable, consents subsequent to the Closing Date to the incurrence by the principal(s) of a Mortgagor under a Trust Mortgage Loan of mezzanine financing or the incurrence by a Mortgagor of subordinate debt and enters into an intercreditor agreement, such servicer (cto the extent it is permitted to do so under the related loan documents and applicable law and in accordance with the Servicing Standard) Notwithstanding Section 3.08(a), shall require the related mezzanine or subordinate lender to agree to pay a Principal Recovery Fee in connection with any transfer of an interest purchase right that arises upon a loan default in the related Borrower event such purchase occurs after the expiration of 60 days from the date the right to purchase arises under a Performing Serviced such intercreditor agreement. The foregoing sentence shall not operate to modify the provisions of the preceding paragraph of this Section 3.08(a) regarding due-on-sale and due-on-encumbrance provisions. Notwithstanding anything in this Section 3.08(a) or any other provision of this Agreement to the contrary, neither (i) the consent of the Special Servicer nor (ii) confirmation from the Rating Agencies that the subject transfers will not result in an Adverse Rating Event will be required in connection with the tenant-in-common transfers contemplated by Section 13.7(e) of the loan agreement for the Trust Mortgage Loan or related Serviced Pari Passu Companion Loan, (Xxxxxxxx Center) identified as loan number 15 on the applicable Mortgage Loan Schedule. The Master Servicer shall have deliver written notice of such transfers to the right Special Servicer and the Rating Agencies upon the completion of such transfers.
(b) Notwithstanding any other provisions of this Section 3.08, the Master Servicer with respect to grant its Mortgage Loans that are not Specially Serviced Mortgage Loans (without the Special Servicer's consent, but subject to delivering prior notice to the Special Servicer and the Controlling Class Representative (and with respect to a Loan Combination, the related Non-Trust Noteholder(s)) or the Special Servicer with respect to Specially Serviced Mortgage Loans, as applicable, may grant, without any Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor's request for consent to subject the same without the related Mortgaged Property to an easement, right-of-way or other similar agreement for utilities, access, parking, public improvements or another purpose, and may consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms to subordination of the related Mortgage Loan Documents without to such easement, right-of-way or other similar agreement provided the exercise of any lender approval Master Servicer or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Special Servicer, as applicable, shall have determined in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated accordance with the Borrower under Servicing Standard that such Mortgage Loaneasement, is one of right-of-way or other similar agreement shall not materially interfere with the then-current top ten use of the related Mortgaged Property, the security intended to be provided by such Mortgage Loans (by Stated Principal Balance) in or the related Mortgagor's ability to repay the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000Loan, or has a Stated Principal Balance that equals materially and adversely affect the value of such Mortgaged Property, or exceeds 5% of the then-aggregate Stated Principal Balance of cause the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are cease to be payable by the related Borrower to the extent provided a qualified mortgage loan for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationREMIC purposes.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MLCFC Commercial Mortgage Trust Series 2006-1)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced As to each Mortgage Loan that contains a provision in the nature of a (i) “due-on-sale” clause (which includes, without limitation, sales or Serviced Loan Combination expressly permits the assignment transfers of the related Mortgaged Property to(in full or in part) or the sale, and assumption transfer, pledge or hypothecation of direct or indirect interest in the related Borrower or its owners), which by its terms (1) provides that such Mortgage Loan by, another Person, shall (or may at the transfers of interests in the related Borrower, in each case mortgagee’s option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgagor; or (2) provides that such Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer mortgagee or satisfaction of certain conditions in connection with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consentsale or other transfer, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group so long as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then included in the Trust Fund, or (bii) is one of the ten largest as to each Mortgage Loans then Loan that contains a provision in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver nature of a “due-on-sale provision is involvedencumbrance” clause (including, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicablewithout limitation, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all mezzanine financing of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
Mortgaged Property or any sale or transfer of preferred equity in such Borrower or its direct or indirect owners), that by its terms: (F1) neither the applicable Master Servicer (with respect to a Performing Serviced provides that such Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loanshall (or may at the mortgagee’s option) nor become due and payable upon the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment creation of any term additional lien or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further other encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan related Mortgaged Property; or (y)(a2) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order mortgagee or satisfaction of certain conditions to incur subordinate debtthe creation of any such additional lien or other encumbrance on the related Mortgaged Property, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Mortgage Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject . Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “due-on-sale” or “due-on-encumbrance” clause, unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Mortgage Loans in the manner set forth in the immediately below clauses (i) through (vii):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related “due-on-sale” or “due-on-encumbrance” clause without first obtaining the consent of the Special Servicer. The Special Servicer’s consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the last sentence of the first paragraph of clause (ii) below and the Special Servicer shall not have responded in writing, via fax or e-mail within [ten] Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties).
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related “due-on-sale” or “due-on-encumbrance” clause without obtaining the consent of the Directing Certificateholder for any Mortgage Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e-mail within [ten] Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) Notwithstanding anything to the contrary contained herein, if the Special Servicer, in accordance with the Servicing Standard, (a) notifies the Master Servicer of its determination with respect to any Mortgage Loan (which by its terms permits transfer, assumption or further encumbrance without mortgagee consent provided certain conditions are satisfied) that the conditions required under the related loan documents have not been satisfied or (b) the Special Servicer objects in writing to the Master Servicer’s determination that such conditions have been satisfied, then the Master Servicer shall not permit transfer, assumption or further encumbrance of such Mortgage Loan.
(iv) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File.
(v) [Notwithstanding the foregoing, solely with respect to the consent or waiver of any “due-on-encumbrance” clause as described in Section 3.08(a), if any Mortgage Loan:
(1) represents greater than [___]% of the then outstanding principal balance of the Mortgage Pool;
(2) is at the time one of the ten largest Mortgage Loans or Cross-Collateralized Set of Mortgage Loans by outstanding principal balance in the Mortgage Pool;
(3) has a then outstanding principal balance of greater than $[_________]; or
(4) after taking into consideration any additional indebtedness secured by the related Mortgage Property and any mezzanine debt, the loan to value ratio for such Mortgage Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related “due-on- encumbrance” clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Set unless the Master Servicer or Special Servicer, as applicable, shall have obtained Rating Agency Confirmation from each Rating Agency.]
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a “Net Assumption Fee”) or of such assumption application fee (such remaining portion, a “Net Assumption Application Fee”) will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Merrill Lynch Commercial Mortgage Inc.)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion that is a Pooled Mortgage Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer (and, if a Serviced Mortgage Loan Group is involved, to the related Serviced Mortgage Loan Group Controlling Party) with (x) written notice of any Borrower request for such assignment and assumption or such encumbranceassumption, (y) the applicable Master Servicer’s written 's recommendations and analysis, and (z) with all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section Sections 3.24, 3.27, 3.28, 3.29 and/or Section 3.26 3.30, if and as applicable), and (3) except with respect to any Nationwide Pooled Mortgage Loan, PCFII Pooled Mortgage Loan, if any such consent has not been expressly denied within fifteen (15) seven Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s 's receipt from the applicable Master Servicer of the applicable such Master Servicer’s written 's recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted, and (4) solely with respect to any PCFII Pooled Mortgage Loan or any Nationwide Pooled Mortgage Loan, any such consent shall be deemed to have been granted if such consent has not been expressly denied either (x) within ten Business Days of the applicable Special Servicer's receipt of the applicable Master Servicer's recommendations and analysis, if the applicable Special Servicer has not requested additional information as described above on or before the date that is four Business Days following the applicable Special Servicer's initial receipt of the applicable Master Servicer's recommendations and analysis, or (y) within six Business Days following the applicable Special Servicer's receipt of the additional information requested by the applicable Special Servicer as described above, if the applicable Special Servicer has requested such additional information on or before the date that is four Business Days following the applicable Special Servicer's initial receipt of the applicable Master Servicer's recommendations and analysis);
(B1) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Pooled Mortgage Loan that (together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan) is one of the ten largest Pooled Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Pooled Mortgage Loan and, if applicable, any related Performing other than a Specially Serviced Pari Passu Companion Pooled Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates and (2) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Serviced Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the applicable Special Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) unless and in the case of a Serviced Loan Combination, the equivalent until it has received written confirmation from each Pari Passu Companion applicable Rating Agency with respect to for the related Serviced Non-Pooled Pari Passu Companion Loan Securities; andSecurities that such action would not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(C1) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation that such approval or waiver is the subject action would not result in an Adverse Rating Event with respect to any Class of a Rated Certificates from each Rating Agency Confirmation (subject Agency, with respect to Section 3.27) if the related any Serviced Pooled Mortgage Loan that (a) represents 2% or more of the then-then aggregate principal balance of all of the Pooled Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Pooled Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x1.2x and (2) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved and the affected Serviced Mortgage Loan is a Serviced Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the applicable Special Servicer (if such Serviced Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities that such action would not result in an Adverse Rating Event with respect to any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable a Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable a Special Servicer, it has obtained the consent of the Subordinate Controlling Class RepresentativeRepresentative and/or the related Serviced Mortgage Loan Group Controlling Party, if and to the extent required under Sections 3.24 3.24, 3.27, 3.28, 3.29 and/or Section 3.263.30, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any confirmation(s) of the absence of an Adverse Rating Agency ConfirmationEvent) are covered without any expense to the Trust or (in the case of a Serviced Mortgage Loan CombinationGroup) any expense to any related Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an any Adverse Grantor Trust Event with respect to the any Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable a Master Servicer’s 's recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 Sections 3.24, 3.27, 3.28, 3.29 and/or Section 3.263.30, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s 's approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer if (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretionexercise). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the The applicable Master Servicer shall have the right to grant its consent to any transfers of an interest in the same without Borrower under a Performing Serviced Mortgage Loan, to the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if extent such transfer is allowed under the terms of the related Mortgage Loan Documents (without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion), including a any consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Pooled Mortgage Loan that, together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan, has a Stated Principal Balance that equals or exceeds 5% of the then aggregate Stated Principal Balance of the Mortgage Pool or is one of the then-then current top ten Pooled Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, Pool or has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)%, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a it has received written confirmation from each Rating Agency Confirmation that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense); provided, further, however, that, subject to Section 3.27the terms of the related Mortgage Loan Documents and applicable law, if (i) (and, in the case of any applicable matter involves a Serviced Mortgage Loan Group that includes one or more Serviced Non-Pooled Pari Passu Companion Loans and (ii) the transfer is part of a Loan Combinationan interest in the Borrower greater than 49%, an analogous rating agency then the applicable Master Servicer shall not consent to such transfer unless and until it has received written confirmation from each Rating Agency for the Rated Certificates that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates rated by such Rating Agency and also a written confirmation from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities that such action would not result in an Adverse Rating Agency, if applicable pursuant Event with respect to Section 3.27(k)) any class of such Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2007-Pwr18)
Enforcement of Alienation Clauses. (a) If the provisions of any The Master Servicers (with respect to Serviced Mortgage Loan Loans that are not Specially Serviced Mortgage Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans), on behalf of the Trustee as the mortgagee of record, shall enforce any "due-on-sale" or Serviced Loan Combination expressly permits "due-on-encumbrance" clauses and any other restrictions contained in the assignment related Mortgage or other related loan document on transfers or further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, unless the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain Servicer, as the relevant information and review and make a determination to either case may be, has (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance determined, in its reasonable judgment (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent exercised in accordance with the Servicing Standard (and subject which, for the avoidance of doubt, would include a determination that any required conditions to Section 3.24a transfer have been met), and/or Section 3.26 if and that waiver of the lender's rights under such clauses or the waiver of such other restrictions, as applicable), would be in accordance with the Servicing Standard and (3ii) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of complied with the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loansrequirements, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the TrustSection 3.28 , has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents Section 3.30 and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan andSection 6.11, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor and the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless provisions regarding consultation and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and consent set forth in the case of a Serviced related Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan SecuritiesCombination Co-Lender Agreement; andprovided that:
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents documents and applicable law, neither none of the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) Servicers nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “"due-on-encumbrance” " clause under any Serviced Trust Mortgage Loan that is a Significant Mortgage Loan, or if, taking into account existing debt on the subject Mortgaged Property (including any related Non-Trust Loan(s)) and the proposed additional debt as if such total debt were a single mortgage loan, the Loan-to-Value Ratio is equal to or greater than 85% or the Debt Service Coverage Ratio is equal to or less than 1.2x, unless it receives prior written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event;
(ii) subject to the related Mortgage Loan documents and applicable law, none of the Master Servicers shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Serviced Trust Mortgage Loan that is not a Specially Serviced Mortgage Loan until it has delivered to the Special Servicer its recommendation and analysis of the request, together with a copy of the materials and information upon which such recommendation is based, and has received the consent of the Special Servicer (the giving of which consent shall be subject to the Servicing Standard and Section 3.28, Section 3.30 and Section 6.11, and which consent shall be deemed given if not denied in writing within 10 Business Days (or, if (x) the Controlling Class Representative is entitled to object pursuant to this paragraphSection 6.11, 15 Business Days (which 15 Business Days shall be subject to the limitation to five (5) Business Days specified in the proviso at the end of the first paragraph of Section 6.11): or (y) any Loan Combination Controlling Party or any mezzanine loan holder is entitled to object, the later of 10 Business Days or five (5) Business Days after the date such Loan Combination Controlling Party's or mezzanine loan holder's consent is given or deemed given) after receipt by the Special Servicer of the applicable Master Servicer's written recommendation and analysis and any additional information reasonably requested by the Special Servicer or the Controlling Class Representative); provided that, with respect to a waiver of a due-on-sale provision, in the event that such Serviced Mortgage Loan is not a Significant Mortgage Loan, and the Mortgage Loan documents contain a requirement for Rating Agency approval, the applicable Master Servicer or the Special Servicer, subject to Section 3.28, Section 3.30 and Section 6.11, may waive such requirement without Rating Agency approval in accordance with the Servicing Standard; and further provided that, if the affected Serviced Trust Mortgage Loan is a Significant Mortgage Loan, then, subject to the related Mortgage Loan documents and applicable law, none of the Master Servicers nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" clause under any Trust Mortgage Loan until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event
(iii) subject to the related Mortgage Loan documents and applicable law, none of the Master Servicers nor the Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related "due-on-sale" or "due-on-encumbrance" clause under any Serviced Mortgage Loan, or approve the assumption of any Serviced Mortgage Loan, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.Trust (it being understood and agreed that, except as expressly provided herein, none of the Master Servicers nor the Special Servicer shall be obligated to cover or assume any such costs or expenses); and
(biv) none of the Master Servicers nor the Special Servicer shall (to the extent that it is within the control thereof to prohibit such event) consent to the transfer of any Serviced Mortgaged Property that secures a Crossed Loan Group unless (i) all of the Serviced Mortgaged Properties securing such Crossed Loan Group are transferred simultaneously by the respective Mortgagor or (ii) it obtains the consent of the Controlling Class Representative or any applicable Loan Combination Controlling Party, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if (x) the Controlling Class Representative is entitled to object pursuant to Section 6.11, 15 Business Days, which 15 Business Days shall include the five (5) Business Days specified in the proviso at the end of the first paragraph of Section 6.11 or (y) any Loan Combination Controlling Party or any mezzanine loan holder is entitled to object, the later of 10 Business Days or five (5) Business Days after the date such Loan Combination Controlling Party's or mezzanine loan holder's consent is given or deemed given) of receipt by the Controlling Class Representative or any applicable Loan Combination Controlling Party of written notice of such action and all reasonably requested information related thereto (or, if no information is requested, within 10 Business Days (or, if applicable, 15 Business Days) of receipt of written notice). If, in connection with an assumption of any Serviced Mortgage Loan, the applicable Mortgage Loan Seller bears the costs and expenses associated with such assumption in accordance with the terms of the applicable Mortgage Loan Purchase Agreement, any costs and expenses subsequently recovered by the applicable Master Servicer or the Special Servicer from the related Mortgagor in respect of such assumption shall be promptly remitted by such Master Servicer or the Special Servicer to the applicable Mortgage Loan Seller. In the case of any Serviced Mortgage Loan, the applicable Master Servicer and the Special Servicer shall each provide the other with all such information as each may reasonably request in order to perform its duties under this Section. In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Servicer, with respect to Mortgage Loan) or the applicable Special Servicer (in the case of a Loans that are not Specially Serviced Mortgage Loan) Loans, or the Special Servicer, with respect to the Specially Serviced Mortgage Loans, shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents. If the applicable Master Servicer or the Special Servicer, as applicable, consents subsequent to the Closing Date to the incurrence by the principal(s) of a Mortgagor under a Serviced Trust Mortgage Loan of mezzanine financing or the incurrence by a Mortgagor of subordinate debt and enters into an intercreditor agreement, such servicer (to the extent it is permitted to do so under the related loan documents and applicable law and in accordance with the Servicing Standard) shall require the related mezzanine or subordinate lender to agree to pay a Principal Recovery Fee in connection with any purchase right that arises upon a loan default in the event such purchase occurs after the expiration of 60 days from the date the right to purchase arises under such intercreditor agreement. The foregoing sentence shall not operate to modify the provisions of the preceding paragraph of this Section 3.08(a) regarding due-on-sale and due-on-encumbrance provisions.
(b) Notwithstanding any other provisions of this Section 3.08, the applicable Master Servicer with respect to Serviced Mortgage Loans that are not Specially Serviced Mortgage Loans (without the Special Servicer's or the Controlling Class Representative's consent (and with respect to a Loan Combination, subject to delivering prior notice to the related Non-Trust Noteholder(s)) or the Special Servicer with respect to the Specially Serviced Mortgage Loans, as applicable, may grant, without any Rating Agency confirmation as otherwise provided in paragraph (a) above, a Mortgagor's request for consent to subject the related Mortgaged Property to an easement, right-of-way or other similar agreement for utilities, access, parking, public improvements or another purpose, and may consent to subordination of the related Serviced Mortgage Loan to such easement, right-of-way or other similar agreement provided the applicable Master Servicer or the Special Servicer, as applicable, shall have determined in accordance with the Servicing Standard that such easement, right-of-way or other similar agreement shall not materially interfere with the then-current use of the related Mortgaged Property, the security intended to be provided by such Mortgage or the related Mortgagor's ability to repay the Serviced Mortgage Loan, or materially and adversely affect the value of such Mortgaged Property, or cause the Serviced Mortgage Loan to cease to be a qualified mortgage loan for REMIC purposes.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in anything herein to the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loancontrary, the applicable Master Servicer shall have the right to grant its consent to the same approve and close, without the consent or approval of the applicable Special Servicer (or Servicer, the applicable Special Servicer interacting with the Subordinate Controlling Class Representative or any Rating Agency, all initial syndications of tenant-in-common interests, provided such syndications are specifically permitted by and in connection accordance with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise documents for any Serviced Mortgage Loan that is not a Specially Serviced Mortgage Loan. Upon completion of any lender approval or discretion other than confirming such initial transfer, the satisfaction of the other conditions applicable Master Servicer shall promptly provide notice by electronic mail thereof to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessSpecial Servicer, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if which notice shall also (i) advise the affected Special Servicer as to the total number of transfers with respect to such Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, that such Master Servicer has approved and closed as of such date and the expiration date (if any, that are in the same Cross-Collateralized Group as ) by which such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known transfer(s) must occur pursuant to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderloan documents, and (ii) advise the transfer is Special Servicer of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposeswhen, “control” when used with respect to any specified person means such Serviced Mortgage Loan, such tenant-in-common syndication is complete. Any request for a modification to or extension of the power to direct final initial syndication date respecting any such tenant-in-common transfers, increase in the management and policies permitted number of tenant-in-common interests under the initial syndication, or any other waiver or modification of terms required for such person, directly a syndication or indirectly, whether through the ownership of voting securities, transfer shall be forwarded by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided Special Servicer for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable its consent together with such Master Servicer's recommendation, and, if analysis and any other supporting material in such Master Servicer's possession that the Special Servicer may reasonably request to grant or withhold such consent. If the Special Servicer has not paid, such costs shall be paid by and reimbursed to expressly withheld its consent within 10 Business Days after the Special Servicer's receipt from the applicable Master Servicer as an Additional Trust Fund Expense)of its request, recommendation and analysis and any other supporting material that the Special Servicer may have reasonably requested, such consent shall be deemed to have been granted. The applicable Master Servicer shall be entitled to collect and receive from Borrowers promptly notify the Controlling Class Representative or the Loan Combination Controlling Party, as applicable, of any customary fees in connection with such transfers of interest as Additional Master Servicing Compensationmodification or extension.
Appears in 1 contract
Enforcement of Alienation Clauses. (a) If the provisions of If, with respect to any Performing Serviced Mortgage Loan or Serviced Loan Combination expressly permits Loan, the assignment Master Servicer receives a request from a Mortgagor regarding the transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person and/or transfers of certain interests in such Mortgagor (including, without limitation, sales or transfers of the related Mortgaged Property (in full or in part) or the sale, transfer, pledge or hypothecation of direct or indirect interests in the related Mortgagor or its owners) or, in the case of a Performing Serviced Mortgage Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Mortgagor for a determination that such conditions have been satisfied, then the Master Servicer shall promptly notify the Special Servicer of such request, shall evaluate (consistent with the Servicing Standard) the experience and financial condition of the proposed transferee and the status of any conditions to transfer or assumption (as described above) and prepare a report in connection therewith and shall deliver to the Special Servicer such report and any documents or other materials that the Master Servicer shall have received regarding the proposed transfer and, if applicable, the proposed assumption. The Special Servicer shall have the right hereunder, within 15 days (or, in the case of a consent to a determination as to whether the conditions precedent to the subject transfer or assumption have been satisfied, within 10 days, or within such longer period as may be necessary to obtain any required consent pursuant to Section 3.27 or 6.11, as and if applicable) of receipt of such recommendation and supporting materials and any other materials reasonably requested by the Special Servicer, in accordance with the Servicing Standard, to withhold or grant consent to any such request for such transfer and/or assumption and/or to make a determination as to whether the conditions to transfer or assumption (as described above) have been satisfied, as applicable, each in accordance with the terms of the subject Performing Serviced Mortgage Loan and this Agreement; provided that any grant of consent on the part of the Special Servicer shall be subject to Section 3.08(d), Section 3.27 and/or Section 6.11, in each case if and as applicable. If the Special Servicer does not respond within such 15-day period, 10-day period or such longer period as set forth above (and set forth in the notice described in the following proviso), as the case may be, such party's consent shall be deemed granted; provided that if the Special Servicer's consent is not withheld, granted or deemed granted within the aforementioned 15-day period or 10-day period, as applicable, because the Special Servicer is in the process of obtaining a consent required pursuant to Section 3.27 and/or Section 6.11, as applicable, then the Special Servicer shall, prior to the termination of the aforementioned 15-day or 10-day period, provide notice to the Master Servicer of such process and the estimated time period for completion thereof. If the Special Servicer, in accordance with the Servicing Standard, (i) withholds or denies its consent to any such request for such transfer and/or assumption with respect to any Performing Serviced Mortgage Loan and/or (ii) determines, with respect to any Performing Serviced Mortgage Loan that by its terms permits transfer and/or assumption without lender consent so long as certain conditions are satisfied, that such conditions have not been satisfied, then, in each such case, the Special Servicer shall notify the Master Servicer in writing of such determination, and the Master Servicer shall notify the related Mortgagor that the requested transfer and/or assumption will not be permitted and shall restrict the requested transfer and/or assumption of the subject Performing Serviced Mortgage Loan in accordance with the Servicing Standard. If the Special Servicer consents or is deemed to consent to such proposed transfer and/or assumption and/or determines that the conditions to transfer or assumption have been satisfied, the Master Servicer shall process such request of the related Mortgagor; and, in the case of a transfer of the related Mortgaged Property to, and assumption of such Performing Serviced Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such Master Servicer (subject to Section 3.08(d)) shall be authorized to enter into an assignment and assumption or transfer except upon substitution agreement with the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferPerson, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into which shall be a transfer of Single Purpose Entity, to whom the related Mortgaged Property has been or of interest(s) is proposed to be conveyed and/or release the original Mortgagor from liability under such Performing Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Master Servicer shall not enter into any such agreement to the extent that any terms thereof would result in such Borrower in violation an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the lien of the related Mortgage. The Master Servicer shall notify the Trustee, the Special Servicer, each Rating Agency, the Controlling Class Representative and, in the case of a Serviced Loan Combination that consists of Performing Serviced Mortgage Loans, the related Serviced Non-Trust Mortgage Loan DocumentsNoteholder(s), of any assumption or if substitution agreement executed pursuant to this Section 3.08(a) and shall forward thereto a copy of such agreement together with a Review Package. Subject to the provisions terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made without the assumption of all other Serviced Trust Mortgage Loans making up the related Cross-Collateralized Group. Further, subject to the terms of the related loan documents and applicable law, no assumption of a Serviced Mortgage Loan shall be made or transfer of interest in a Mortgagor approved, unless all costs in connection therewith, including any arising from seeking Rating Agency confirmation, are paid by the related Mortgagor. Notwithstanding anything herein to the contrary, the Master Servicer shall approve and close, without the consent of the Special Servicer, all initial syndications of tenant-in-common interests, provided such syndications are specifically permitted by and in accordance with the related loan documents for any Serviced Mortgage Loan that is not a Specially Serviced Mortgage Loan. Upon completion of any such initial transfer, the Master Servicer shall promptly provide notice by electronic mail thereof to the Special Servicer and the Controlling Class Representative, which notice shall also (i) advise the Special Servicer and the Controlling Class Representative as to the total number of transfers with respect to such Serviced Mortgage Loan that the Master Servicer has approved and closed as of such date and the expiration date (if any) by which such transfer(s) must occur pursuant to the related loan documents, and (ii) advise the Special Servicer and the Controlling Class Representative of when, with respect to any such Serviced Mortgage Loan, such tenant-in-common syndication is complete. Any request for a modification to or Serviced Loan Combination expressly permits the further encumbrance extension of the related Mortgaged Property upon final initial syndication date respecting any such tenant-in-common transfers or increase in the satisfaction permitted number of specified conditionstenant-in-common interests under the initial syndication shall be (A) processed (i) solely in the case of a KeyBank Trust Mortgage Loan and only for so long as KeyCorp Real Estate Capital Markets, prohibits Inc. is the primary servicer with respect to such a further encumbrance except upon KeyBank Trust Mortgage Loan, by the satisfaction of specified conditions or fully prohibits such a further encumbranceMaster Servicer, and (ii) in each caseall other cases, other than an encumbrance with respect (A)(i) above, by the Special Servicer, and (B) in all cases, submitted to a Co-op Mortgage Loan as the Special Servicer for approval (which, in the case of clause (A)(i) above shall be deemed approved if the request is not denied by the Special Servicer in writing to which the NCB, FSB Subordinate Debt Conditions have been satisfiedMaster Servicer within ten (10) Business Days of the Special Servicer's receipt of such request), and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer shall promptly notify the Controlling Class Representative of any such modification or extension.
(b) If, with respect to a Specially Serviced Mortgage Loan) shall obtain , the relevant information and review and make Master Servicer receives a determination request from a Mortgagor for consent to either (i) disapprove such request for approval a transfer of an assignment the related Mortgaged Property and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the and/or consent to a transfer of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for interests in the related Intercreditor Agreement) Mortgagor (including, without limitation, sales or transfers of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(sin full or in part) or (ii) either (x) in the case sale, transfer, pledge or hypothecation of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) direct or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth indirect interests in the related Mortgage Loan Documents do not include the approval of the lender Mortgagor or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loanits owners) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with Loan that by its terms permits transfer or assumption without the consent of the lender so long as certain conditions are satisfied, a request by the related Borrower Mortgagor for a determination that such conditions have been satisfied, the due execution and delivery Master Servicer shall promptly notify the Special Servicer of such documents.
(c) Notwithstanding Section 3.08(a), in connection with request and deliver to the Special Servicer any transfer of an interest in documents that the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have received regarding the right proposed transfer and assumption. Subject to Section 3.08(d), Section 3.27 and/or Section 6.11, in each case if and as applicable, the Special Servicer shall determine whether to grant its such consent, whether the conditions to transfer or assumption (as described above) have been satisfied and/or whether to enforce any restrictions on such transfer and/or assumption contained in the related loan documents, as applicable, each in accordance with the Servicing Standard. Upon consent by the Special Servicer to any proposed transfer of a Mortgaged Property and assumption by the proposed transferee of the related Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer shall process the request of the related Mortgagor for such transfer and assumption and shall be authorized to enter into an assumption or substitution agreement with the Person, which shall be a Single Purpose Entity, to whom the related Mortgaged Property has been or is proposed to be conveyed and/or release the original Mortgagor from liability under the related Serviced Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Special Servicer shall not enter into any such agreement to the same without extent that any terms thereof would result in an Adverse REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the consent or approval lien of the applicable related Mortgage. The Special Servicer (or shall notify the applicable Special Servicer interacting with Trustee, the Subordinate Master Servicer, each Rating Agency, the Controlling Class Representative in connection and, with respect to a Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any assumption or substitution agreement executed pursuant to this Section 3.08(b) and shall forward thereto a copy of such applicable Master Servicer consent) if such transfer is allowed under agreement. Subject to the terms of the related loan documents, no assumption of a Cross-Collateralized Mortgage Loan Documents shall be made without the exercise assumption of any lender approval or discretion all other than confirming the satisfaction of the other conditions to the transfer set forth in Serviced Trust Mortgage Loans making up the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided thatCross-Collateralized Group. Further, subject to the terms of the related Mortgage Loan Documents loan documents and applicable law, if (i) the affected no assumption of a Serviced Mortgage Loan is or relates to a Mortgage Loan thatshall be made unless all costs in connection therewith, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require including any arising from seeking Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunderconfirmation, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable paid by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing CompensationMortgagor.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2007-C7)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion that is a Pooled Mortgage Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer (and, if a Serviced Mortgage Loan Group is involved, to the related Serviced Mortgage Loan Group Controlling Party) with (x) written notice of any Borrower request for such assignment and assumption or such encumbranceassumption, (y) the applicable Master Servicer’s written 's recommendations and analysis, and (z) with all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, 3.27 and/or Section 3.26 3.28, if and as applicable), and (3) except with respect to any Nationwide Pooled Mortgage Loan, PCF Pooled Mortgage Loan or PCFII Pooled Mortgage Loan, if any such consent has not been expressly denied within fifteen (15) seven Business Days (or at least five (5) Business Days after the time period provided for or, in the related case of the 0000 Xxxxxxxx Loan Group, such longer period of time, if any, that is provided in Section 18(a) of the 0000 Xxxxxxxx Intercreditor Agreement, or, in the case of the Tuscany Plaza Loan Group, such longer period of time, if any, that is provided in Section 19(a) of the Tuscany Plaza Intercreditor Agreement) of the applicable Special Servicer’s 's receipt from the applicable Master Servicer of the applicable such Master Servicer’s written 's recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
, and (B4) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver solely with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing PCF Pooled Mortgage Loan, PCFII Pooled Mortgage Loan or any Nationwide Pooled Mortgage Loan, any such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) consent shall be deemed to have been granted if such consent has not been expressly denied either (x) in within ten Business Days of the case applicable Special Servicer's receipt of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative's recommendations and analysis, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, not requested additional information as applicable. Notwithstanding described above on or before the foregoing, in no event will date that is four Business Days following the applicable Special Servicer's initial receipt of the applicable Master Servicer’s approval 's recommendations and analysis, or (y) within six Business Days following the applicable Special Servicer's receipt of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from additional information requested by the applicable Special Servicer (or as described above, if the applicable Special Servicer interacting with has requested such additional information on or before the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction date that is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or four Business Days following the applicable Special Servicer (in the case Servicer's initial receipt of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by 's recommendations and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expenseanalysis). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)
Enforcement of Alienation Clauses. (a) If As to each Loan that contains a provision in the provisions nature of any Serviced Mortgage Loan a (i) "due-on-sale" clause (which includes, without limitation, sales or Serviced Loan Combination expressly permits the assignment transfers of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, (in full or in part) or the transfers sale, transfer, pledge or hypothecation of interests direct or indirect interest in the related BorrowerBorrower or its owners), in each case which by its terms (1) provides that such Loan shall (or may at the mortgagee's option) become due and payable upon the satisfaction of specified conditions, prohibits such an assignment and assumption sale or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a other transfer of an interest in the related Mortgaged Property or of interest(s) a controlling interest in such Borrower in violation of the related Mortgage Mortgagor; (2) provides that such Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and may not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained be assumed without the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice mortgagee or satisfaction of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, certain conditions in connection with any such approval sale or waiverother transfer, consent or agree to any modification, waiver or amendment of any term or provision of for so long as such Serviced Mortgage Loan that would result is included in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor the Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan Fund or (y)(a3) provides that such Loan may be assumed or transferred without the transaction is permitted under consent of the related Mortgage Loan Documents and (b) the mortgagee provided that certain conditions to the transaction that are set forth in the related Mortgage loan documents are satisfied, or (ii) as to each Loan Documents do not include that contains a provision in the approval nature of a "due-on-encumbrance" clause (including, without limitation, any mezzanine financing of the lender related Borrower or the exercise related Mortgaged Property or any sale or transfer of lender discretion preferred equity in such Borrower or its direct or indirect owners), that by its terms: (1) provides that such Loan shall (or may at the mortgagee's option) become due and payable upon the creation of any additional lien or other than confirming the satisfaction of the other conditions to the transaction set forth in encumbrance on the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or Mortgaged Property; (2) requires the consent of the Mortgagee mortgagee or satisfaction of certain conditions to the creation of any such additional lien or other encumbrance on the related Mortgaged Property; or (3) provides that such Loan may be further encumbered provided that certain conditions set forth in order to incur subordinate debtthe loan documents have been satisfied, each of the NCB Master Servicer mayand the Special Servicer shall, neverthelesson behalf of the Trustee as the mortgagee of record, as to those Loans it is obligated to service hereunder, exercise (or waive its right to exercise) any right it may have with respect to such Loan (x) to accelerate the payments thereon, (y) to withhold its consent to any such sale or other transfer, in accordance a manner consistent with the Servicing Standard, without Standard or (z) determine whether the need to obtain any consent or approval hereunder conditions set forth in clause (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions a)(i)(3) of this paragraph have been met; provided that, subject satisfied. Notwithstanding anything to the related Mortgage Loan Documents and applicable lawcontrary contained herein, neither the NCB Master Servicer nor the Special Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with under any related “"due-on-sale" or "due-on-encumbrance” " clause (including, but not limited to, making any determination that the conditions set forth in clauses Section 3.08(a)(i)(3) and Section 3.08 (a)(ii)(3) have been satisfied), unless both the Master Servicer and the Special Servicer shall have followed the procedures set forth for those Loans in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause (including, but not limited to, making any determination that the conditions set forth in Section 3.08(a)(i)(3) and Section 3.08 (a)(ii)(3) have been satisfied) without first obtaining the consent of the Special Servicer. The Special Servicer's consent shall be deemed given if the Master Servicer shall have provided the Special Servicer written notice of the matter together with all of the information set forth in the immediately succeeding sentence and all information reasonably requested by the Special Servicer and the Special Servicer shall not have responded in writing, via fax or e mail within 15 Business Days of such request (subject to any extensions of applicable time periods required if the Special Servicer is required by this Agreement to seek the consent of other third parties). In connection with the request set forth above, the Master Servicer shall provide to the Special Servicer written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Special Servicer shall reasonably request and a request for approval by the Special Servicer.
(ii) The Special Servicer shall not waive any right it has, or grant any consent that it may otherwise withhold under any related "due-on-sale" or "due-on-encumbrance" clause without obtaining the consent of the Directing Certificateholder for (a) any Performing Loan or (b) for any Specially Serviced Loan. Consent by the Directing Certificateholder shall be deemed given if the Special Servicer shall have provided the Directing Certificateholder written notice of the matter together with all of the information set forth in the immediately succeeding sentence and the Directing Certificateholder shall not have responded in writing, via fax or e mail within ten Business Days of such request. In connection with the request set forth above, the Special Servicer shall provide to the Directing Certificateholder written notice of the matter, a written explanation of the surrounding circumstances, such additional information as the Directing Certificateholder shall reasonably request and a request for approval by the Directing Certificateholder.
(iii) [RESERVED].
(iv) [RESERVED].
(v) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-sale" clause as described in Section 3.08(a), if any Mortgage Loan has an outstanding principal balance of greater than $5,000,000 and:
(1) represents greater than 5% of the then outstanding principal balance of the Mortgage Pool;
(2) has an outstanding principal balance of greater than $35,000,000; or
(3) is one of the ten largest Mortgage Loans in the Trust Fund based on outstanding principal balance, then neither the Master Servicer nor Special Servicer shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-sale" clause until it has received written confirmation from each Rating Agency that such action would not result in the qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vi) Notwithstanding the foregoing, solely with respect to the consent or waiver of any "due-on-encumbrance" clause as described in Section 3.08(a), if any Mortgage Loan:
(1) represents greater than 2% of the then outstanding principal balance of the Mortgage Pool, or
(2) is at the time one of the ten largest Mortgage Loans (by outstanding principal balance) in the Mortgage Pool or has an outstanding principal balance of greater than $20,000,000, or
(3) after taking into consideration any additional indebtedness secured by the related Mortgaged Property, the loan-to-value ratio for such Mortgage Loan would be greater than 85% or the debt service coverage ratio would be less than 1.20x, then neither the Master Servicer nor the Special Servicer, as the case may be, shall waive any right it has, or grant any consent it is otherwise entitled to withhold, under any related "due-on-encumbrance" clause governing the transfer of any Mortgaged Property that secures, or controlling interests in any Mortgagor under, a Cross-Collateralized Set unless the Master Servicer or Special Servicer, as applicable, shall have obtained written confirmation from each Rating Agency that such action shall not result in a qualification (if applicable), downgrade or withdrawal of the rating then assigned by such Rating Agency to any Class of Certificates.
(vii) In the event that the Master Servicer or Special Servicer intends or is required, in accordance with the preceding clauses, by the loan documents or applicable law, to permit the transfer of any Mortgaged Property, the Master Servicer or the Special Servicer, as the case may be, may, if consistent with the Servicing Standard, enter into a substitution of liability agreement, pursuant to this paragraphwhich the original Mortgagor and any original guarantors are released from liability, unless and the transferee and any new guarantors are substituted therefor and become liable under the Mortgage Note and any related guaranties and, in connection therewith, may require from the related Mortgagor a reasonable and customary fee for the additional services performed by it, together with reimbursement for any such case, all associated related costs and expenses are covered without incurred by it. In addition, the Master Servicer or the Special Servicer, as the case may be, if consistent with the Servicing Standard, shall require as a condition of its approval that the related Mortgagor pay all costs associated with such transfer. The Master Servicer or the Special Servicer, as the case may be, shall promptly notify the Trustee in writing of any expense such agreement and forward the original thereof to the TrustTrustee for inclusion in the related Mortgage File.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower Mortgagor for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), If the Master Servicer or the Special Servicer collects an assumption fee or an assumption application fee in connection with any transfer or proposed transfer of an any interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, Mortgagor or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)Mortgaged Property, then the applicable Master Servicer shall not consent or the Special Servicer, as applicable, will apply that fee to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (cover the costs of which and expenses associated with that transfer or proposed transfer that are to be payable not otherwise paid by the related Borrower Mortgagor and that would otherwise be payable or reimbursable out of the Trust Fund, including any Rating Agency fees and expenses. Any remaining portion of such assumption fee (such remaining portion, a "Net Assumption Fee") or of such assumption application fee (such remaining portion, a "Net Assumption Application Fee") will be applied as additional compensation to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master or the Special Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection accordance with such transfers of interest as Additional Master Servicing CompensationSection 3.11.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2006-6)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such Subject to section 3.08(a)(iii) below, upon receipt of any request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation waiver in respect of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c)provision, the applicable Master Servicer shall Servicer, with respect to Mortgage Loans, (other than the Tenants in Common Loans) that are not enter into such a waiver or approval for any Performing Specially Serviced Mortgage Loan andLoans, if applicableand the Special Servicer, any related Performing with respect to Specially Serviced Pari Passu Companion LoanMortgage Loans, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide analyze such waiver, including the applicable Special Servicer preparation of written materials in connection with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available will close the related transaction, subject to the applicable consent rights (if any) of each Companion Holder pursuant to the related Intercreditor Agreement as provided in this Section 3.08. With respect to all Mortgage Loans other than Specially Serviced Mortgage Loans and the Tenants in Common Loans, the Master Servicer that or, in the case of Specially Serviced Mortgage Loans, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable Special Servicer may reasonably request in order to withhold or grant any such consentlaw, (2) enforce the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for restrictions contained in the related Intercreditor Agreement) Mortgage on transfers or further encumbrances of the applicable Special Servicer’s related Mortgaged Property and on transfers of interests in the related Mortgagor, unless following its receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer a request of a waiver in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver respect of a due-on-sale or due-on-encumbrance provision is involved the Master Servicer (with the written consent of the Special Servicer, which consent shall be deemed given if not denied within the later of (a) 15 Business Days after the Special Servicer’s receipt of the written recommendation of the Master Servicer for such action and any additional information the Special Servicer may reasonably request for the analysis of such request (such recommendation and information may be delivered in an electronic format reasonably acceptable to the Master Servicer and the affected Serviced Special Servicer) and (b) 5 Business Days after the Controlling Class Representative’s receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative may reasonably request for the analysis of such request, which notice shall be given by the Special Servicer no later than 10 Business Days after the commencement of the 15 Business Day period described in the preceding clause (a)) or the Special Servicer (with the written consent of the Controlling Class Representative, which consent shall be deemed given if not denied within 5 Business Days after the Controlling Class Representative’s receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative may reasonably request for the analysis of such request), as applicable, has determined, consistent with the Servicing Standard, that the waiver of such restrictions would be in accordance with the Servicing Standard. Promptly after the Master Servicer (with the written consent of the Special Servicer to the extent required in the preceding sentence) or the Special Servicer (with the written consent of the Controlling Class Representative to the extent required in the preceding sentence), as applicable, has made any such determination, the Master Servicer or the Special Servicer shall deliver to the Trustee, the Rating Agencies and each other party hereto an Officer’s Certificate setting forth the basis for such determination.
(i) Subject to Section 3.08(a)(iii) below, with respect to any Tenants in Common Loan, the Master Servicer, on behalf of the Trustee as the mortgagee of record, shall review (A) each request for a sale, transfer or syndication of any Mortgagor’s equity interests in the related Mortgagor and shall promptly analyze such request, including, with regard to each proposed Mortgagor transferee, the financial statements, credit information, organizational documents and other written materials set forth on the applicable schedule on Exhibit Z hereto, to determine, in accordance with the Servicing Standard, whether the requested sale, transfer or syndication meets the applicable requirements and to obtain any consents required under any related Intercreditor Agreement, and (B) the corresponding waiver of any applicable due-on-sale or due-on-encumbrance provision and determine whether approval of such waiver is consistent with the Servicing Standard. Promptly after the Master Servicer has made any such affirmative determination that such sale, transfer or syndication meets the applicable requirements on Exhibit Z, the Master Servicer shall deliver to the Special Servicer, the Trustee, the Rating Agencies, the Controlling Class Representative and each other party hereto, no later than five (5) Business Days prior to such sale, transfer or syndication, an Officer’s Certificate setting forth notice of the approval or disapproval and the basis for such determination, set forth in Exhibit AA, including evidence of compliance with each of the requirements for such Mortgage Loan described on Exhibit Z, provided, however, if the proposed investor/transferee is a single member limited liability company not organized in Delaware or is not an accredited investor, the provisions of this Section 3.08(a)(ii) shall not apply and approval of any such transfer shall follow the procedures set forth in Section 3.08(a)(i), and provided further that notwithstanding Section 3.11(c), with respect to any transfer approved pursuant to this Section 3.08(a)(ii), the Special Servicer shall be entitled to certain of the fees as set forth on Exhibit Z paid by the Mortgagor, and the Master Servicer shall not waive any such fees without the consent of the Special Servicer.
(ii) With respect to all Mortgage Loans, neither the Master Servicer nor the Special Servicer shall exercise (and the Special Servicer shall not consent to) any waiver in respect of a due-on-encumbrance provision of any Mortgage Loan that (together i) with respect to which the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, are one of the ten largest Mortgage Loans or concentrations of Mortgage Loans, if anyas of the date of such waiver request, without receiving prior written confirmation from Mxxxx’x and S&P that are such action would not result in a downgrading, qualification or withdrawal of the same Cross-Collateralized Group as ratings then assigned to the Certificates or (ii) with respect to which (a) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the same Borrower as Mortgagor on such Mortgage Loan, is equal to or in excess of $20,000,000, (b) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have Borrowers that are known been made to be Mortgagors affiliated with the Borrower under Mortgagor on such Mortgage Loan, are greater than 2% of the aggregate Stated Principal Balance of all Mortgage Loans, (c) such Mortgage Loan is one of the ten largest Mortgage Loans then in as of the Trustdate of the waiver (by Stated Principal Balance), or (d) such Mortgage Loan has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio Value Ratio (including existing and proposed calculated to include the additional debtindebtedness secured by any encumbrance) that is equal to or greater than 85% and a Debt Service Coverage Ratio (calculated to include the additional debt from any encumbrance) of 1.20x or (d) has an aggregate debt service coverage ratio (including less, without receiving a prior written confirmation from S&P that such action would not result in a downgrading, qualification or withdrawal of the debt service on ratings then assigned to the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or Certificates. With respect to a waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable lawprovision, neither the Master Servicer nor the Special Servicer shall waive any such restriction without receiving prior written confirmation from Mxxxx’x and S&P that such action would not result in a downgrading, qualification or withdrawal of the ratings then assigned to the Certificates; provided that, if the Mortgage Loan (a) does not have an aggregate Stated Principal Balance (including the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan) equal to or in excess of $35,000,000 (or $25,000,000 with respect to Mxxxx’x), (b) does not have an aggregate Stated Principal Balance (including the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan) greater than 5% of the aggregate Stated Principal Balance of all Mortgage Loans or (c) is not one of the ten largest Mortgage Loans as of the date of the waiver (by Stated Principal Balance), the Master Servicer or the Special Servicer, as applicable, may waive such requirement without confirmation by S&P in accordance with the Servicing Standard; provided, further, that, if the Mortgage Loan does not meet the criteria set forth in clause (ii) of the immediately preceding sentence, the Master Servicer or Special Servicer, as applicable, may waive such requirement without approval by Mxxxx’x or S&P in accordance with the Servicing Standard. With respect to each Co-Lender Loan, no waiver of a due-on-sale or due-on-encumbrance provision will be effective unless the Master Servicer or Special Servicer, as applicable, first consults with the related Subordinate Companion Holder if required under the applicable Intercreditor Agreement.
(b) Notwithstanding any other provisions of this Section 3.08, the Master Servicer (with respect to a Performing Mortgage Loans other than Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion LoanLoans) nor (without the applicable Special Servicer’s consent) or the Special Servicer (with respect to a Specially Serviced Mortgage LoanLoans) shall enter into such approval or waiver with respect may grant, without any Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor’s request for consent to any subject the related Mortgaged Property which secures a Crossto an easement or right-Collateralized Group unless (i) all of-way for utilities, access, parking, public improvements or another purpose, and may consent to subordination of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither to such easement or right-of-way; provided the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable the Special Servicer, as applicable, shall be permitted to deny have determined in accordance with the Servicing Standard that such easement or right-of-way shall not materially interfere with the then-current use of the related request;Mortgaged Property, or the security intended to be provided by such Mortgage, the related Mortgagor’s ability to repay the Mortgage Loan, or materially or adversely affect the value of such Mortgaged Property or cause the Mortgage Loan to cease to be a “qualified mortgage” for REMIC purposes.
(Fc) neither Within 90 days of the applicable Master Servicer (Closing Date, with respect to each of the Mortgage Loans covered by an environmental insurance policy, if any, the Master Servicer shall notify the insurer under such environmental insurance policy and take all other action necessary for the Trustee, on behalf of the Certificateholders, to be an insured (and for the Master Servicer, on behalf of the Trust Fund, to make claims) under such environmental insurance policy. In the event that the Master Servicer has actual knowledge of any event (an “Insured Environmental Event”) giving rise to a Performing Serviced claim under any environmental insurance policy in respect of any Mortgage Loan andcovered thereby, if applicablethe Master Servicer shall, in accordance with the terms of such environmental insurance policy and the Servicing Standard, timely make a claim thereunder with the appropriate insurer and shall take such other actions in accordance with the Servicing Standard which are necessary under such environmental insurance policy in order to realize the full value thereof for the benefit of the Certificateholders and any related Performing Serviced Pari Passu Companion Loan) nor Holders. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, Servicing Standard in connection with any such approval or waiver, consent or agree claim under an environmental insurance policy shall be paid by the Master Servicer and shall be reimbursable to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with it as a Servicing Advance. With respect to any REMIC Pool each environmental insurance policy that relates to one or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op more Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debtLoans, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive review and familiarize itself with the terms and conditions relating to enforcement of claims and shall monitor the dates by which any right it has, claim must be made or grant any consent it is otherwise entitled action must be taken under such policy to withhold, in accordance with realize the full value thereof for the benefit of the Certificateholders and any related “due-on-encumbrance” clause Companion Holders in the event the Master Servicer has actual knowledge of an Insured Environmental Event giving rise to a claim under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to policy. In the Trust.
(b) In connection with any permitted assumption event that the Master Servicer receives notice of any Serviced termination of any environmental insurance policy that relates to one or more Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunderLoans, the applicable Master Servicer shall, within five Business Days after receipt of such notice, notify the Special Servicer, the Controlling Class Representative, the related Companion Holder (in the case of a Performing Serviced Mortgage Co-Lender Loan) or ), the applicable Special Rating Agencies and the Trustee of such termination in writing. Upon receipt of such notice, the Master Servicer (in the case of a with respect to non-Specially Serviced Mortgage LoanLoans, and the Special Servicer with respect to Specially Serviced Mortgage Loans, shall address such termination in accordance with Section 3.07(a) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower same manner as it would the termination of any other Insurance Policy required under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without documents. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Servicing Standard in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including connection with a consent to transfer to any subsidiary or affiliate resolution of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is termination of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs environmental insurance policy shall be paid by the Master Servicer and reimbursed shall be reimbursable to it as a Servicing Advance.
(d) For the avoidance of doubt, any servicing obligation set forth under this Section 3.08 of the Master Servicer or Special Servicer, as applicable, for any Co-Lender Loan shall also apply to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensationrelated Companion Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C34)
Enforcement of Alienation Clauses. (a) If the provisions Upon receipt of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation waiver in respect of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provision, the Master Servicer, with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans, and the Special Servicer, with respect to Specially Serviced Mortgage Loans, shall promptly analyze such waiver, including the preparation of written materials in connection with such analysis, and will close the related transaction, subject to the consent rights (if any) of each Companion Holder pursuant to the related Intercreditor Agreement as provided that in this Section 3.08. With respect to all Mortgage Loans other than Specially Serviced Mortgage Loans, the Master Servicer or, in the case of Specially Serviced Mortgage Loans, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers of interests in the related Mortgagor, unless following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), its receipt of a request of a waiver in respect of a due-on-sale or due-on-encumbrance provision the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained (with the written consent of the applicable Special Servicer Servicer, which consent shall be deemed given if not denied within the later of (it being understood and agreed that (1a) 15 Business Days after the applicable Special Servicer's receipt of the written recommendation of the Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment action and assumption or such encumbrance, (y) any additional information the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request for the analysis of such request (such recommendation and information may be delivered in order an electronic format reasonably acceptable to withhold or grant any such consent, (2the Master Servicer and the Special Servicer) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3b) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time Controlling Class Representative's receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative may reasonably request for the analysis of such request, which notice shall be given by the Special Servicer no later than 10 Business Days after the commencement of the 15 Business Day period provided for described in the related Intercreditor Agreementpreceding clause (a)) or the Special Servicer (with the written consent of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decisionControlling Class Representative, such which consent shall be deemed given if not denied within five Business Days after the Controlling Class Representative's receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative may reasonably request for the analysis of such request), as applicable, has determined, consistent with the Servicing Standard, that the waiver of such restrictions would be in accordance with the Servicing Standard. Promptly after the Master Servicer (with the written consent of the Special Servicer to have been granted;
the extent required in the preceding sentence) or the Special Servicer (Bwith the written consent of the Controlling Class Representative to the extent required in the preceding sentence), as applicable, has made any such determination, the Master Servicer or the Special Servicer shall deliver to the Trustee, the Rating Agencies and each other party hereto an Officer's Certificate setting forth the basis for such determination. Neither the Master Servicer nor the Special Servicer shall exercise (and the Special Servicer shall not consent to) if approval of an assignment and assumption or any such waiver in respect of a due-on-sale encumbrance provision is involved of any Mortgage Loan (i) with respect to which the aggregate of the Stated Principal Balance of such Mortgage Loan and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, are one of the ten largest Mortgage Loans or concentrations of Mortgage Loans, if anyas of the date of such waiver request, without receiving prior written confirmation from Fitch, S&P and Moody's that are such action would not result in a downgrading, qualificaxxxx xx withdrawal of the same Cross-Collateralized Group as ratings then assigned to the Certificates or (ii) with respect to which (a) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the same Borrower as Mortgagor on such Mortgage Loan, is equal to or in excess of $20,000,000, (b) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have Borrowers that are known been made to be Mortgagors affiliated with the Borrower under Mortgagor on such Mortgage Loan, are greater than 2% of the aggregate Stated Principal Balance of all Mortgage Loans, (c) such Mortgage Loan is one of the ten largest Mortgage Loans then in as of the Trustdate of the waiver (by Stated Principal Balance), or (d) such Mortgage Loan has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio Value Ratio (including existing and proposed calculated to include the additional debtindebtedness secured by any encumbrance) that is equal to or greater than 85% and a Debt Service Coverage Ratio (calculated to include the additional debt from any encumbrance) of 1.2x or (d) has an aggregate debt service coverage ratio (including less, without receiving a prior written confirmation from S&P that such action would not result in a downgrading, qualification or withdrawal of the debt service on ratings then assigned to the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or Certificates. With respect to a waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable lawprovision, neither the Master Servicer nor the Special Servicer shall waive any such restriction without receiving prior written confirmation from Fitch, Moody's and S&P that such action would not result in a downgrading, qxxxxxxxation or withdrawal of the ratings then assigned to the Certificates; provided that, if the Mortgage Loan (a) does not have an aggregate Stated Principal Balance (including the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan) equal to or in excess of $35,000,000 (or $25,000,000 with respect to Moody's), (b) does not have an aggregate Stated Principal Balance (inxxxxxxx the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan) greater than 5% of the aggregate Stated Principal Balance of all Mortgage Loans or (c) is not one of the ten largest Mortgage Loans as of the date of the waiver (by Stated Principal Balance), the Master Servicer or the Special Servicer, as applicable, may waive such requirement without confirmation by S&P in accordance with the Servicing Standard; and provided, further, that, if the Mortgage Loan does not meet the criteria set forth in clause (ii) of the immediately preceding sentence, the Master Servicer or Special Servicer, as applicable, may waive such requirement without approval by S&P or Moody's in accordance with the Servicing Standard; and provided, furtxxx, xxat, if the Mortgage Loan is not one of the ten largest Mortgage Loans (by Stated Principal Balance, including all other Mortgage Loans that are cross-collateralized and cross-defaulted with such Mortgage Loan) as of the date of the waiver, the Master Servicer or Special Servicer, as applicable, may waive such requirement without approval by Fitch in accordance with the Servicing Standard. With respect to each Co-Lender Loan, no waiver of a due-on-sale or due-on-encumbrance provision will be effective unless the Master Servicer or Special Servicer, as applicable, first consults with the related Subordinate Companion Holder if required under the applicable Intercreditor Agreement.
(b) Notwithstanding any other provisions of this Section 3.08, the Master Servicer (with respect to a Performing Mortgage Loans other than Specially Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion LoanLoans) nor (without the applicable Special Servicer's consent) or the Special Servicer (with respect to a Specially Serviced Mortgage LoanLoans) shall enter into such approval or waiver with respect may grant, without any Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor's request for consent to any subject the related Mortgaged Property which secures a Crossto an easement or right-Collateralized Group unless (i) all of-way for utilities, access, parking, public improvements or another purpose, and may consent to subordination of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither to such easement or right-of-way provided the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable the Special Servicer, as applicable, shall be permitted to deny have determined in accordance with the Servicing Standard that such easement or right-of-way shall not materially interfere with the then-current use of the related request;Mortgaged Property, or the security intended to be provided by such Mortgage, the related Mortgagor's ability to repay the Mortgage Loan, or materially or adversely affect the value of such Mortgaged Property or cause the Mortgage Loan to cease to be a "qualified mortgage" for REMIC purposes.
(Fc) neither Within ninety (90) days of the applicable Master Servicer (Closing Date, with respect to each of the Mortgage Loans covered by an environmental insurance policy, if any, the Master Servicer shall notify the insurer under such environmental insurance policy and take all other action necessary for the Trustee, on behalf of the Certificateholders, to be an insured (and for the Master Servicer, on behalf of the Trust Fund, to make claims) under such environmental insurance policy. In the event that the Master Servicer has actual knowledge of any event (an "Insured Environmental Event") giving rise to a Performing Serviced claim under any environmental insurance policy in respect of any Mortgage Loan andcovered thereby, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Master Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in accordance with the terms of such environmental insurance policy and the Servicing Standard, timely make a claim thereunder with the appropriate insurer and shall take such other actions in accordance with the Servicing Standard which are necessary under such environmental insurance policy in order to realize the full value thereof for the benefit of the Certificateholders. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such approval or waiver, consent or agree claim under an environmental insurance policy shall be paid by the Master Servicer and shall be reimbursable to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with it as a Servicing Advance. With respect to any REMIC Pool each environmental insurance policy that relates to one or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op more Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debtLoans, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive review and familiarize itself with the terms and conditions relating to enforcement of claims and shall monitor the dates by which any right it has, claim must be made or grant any consent it is otherwise entitled action must be taken under such policy to withhold, realize the full value thereof for the benefit of the Certificateholders in accordance with any related “due-on-encumbrance” clause the event the Master Servicer has actual knowledge of an Insured Environmental Event giving rise to a claim under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to policy. In the Trust.
(b) In connection with any permitted assumption event that the Master Servicer receives notice of any Serviced termination of any environmental insurance policy that relates to one or more Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunderLoans, the applicable Master Servicer shall, within five Business Days after receipt of such notice, notify the Special Servicer, the Controlling Class Representative, the related Companion Holder (in the case of a Performing Serviced Mortgage Co-Lender Loan) or ), the applicable Special Rating Agencies and the Trustee of such termination in writing. Upon receipt of such notice, the Master Servicer (in the case of a with respect to non-Specially Serviced Mortgage LoanLoans, and the Special Servicer with respect to Specially Serviced Mortgage Loans, shall address such termination in accordance with Section 3.07(a) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower same manner as it would the termination of any other Insurance Policy required under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without documents. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Servicing Standard in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including connection with a consent to transfer to any subsidiary or affiliate resolution of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is termination of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs environmental insurance policy shall be paid by the Master Servicer and reimbursed shall be reimbursable to it as a Servicing Advance.
(d) For the avoidance of doubt, any servicing obligation set forth under this Section 3.08 of the Master Servicer or Special Servicer, as applicable, for any Co-Lender Loan shall also apply to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensationrelated Companion Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Bank Commercial Mortgage Trust Series 2005-C22)
Enforcement of Alienation Clauses. (a) If the provisions of any With respect to all Specially Serviced Mortgage Loan Loans, the Special Servicer, and with respect to all other Mortgage Loans, the Master Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or Serviced Loan Combination expressly permits the assignment further encumbrances of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the on transfers of interests in the related BorrowerMortgagor, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either unless (i) disapprove such request for approval of an assignment and assumption the Special Servicer or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust andMaster Servicer, if as applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole)has determined, approve consistent with the request or waive the effect Servicing Standard, that waiver of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or such restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent would be in accordance with the Servicing Standard and (and subject to ii) such waiver is consistent with Section 3.246.11. Promptly after the Special Servicer or Master Servicer, and/or Section 3.26 if and as applicable), and (3) if has made any such consent has not been expressly denied within fifteen (15) Business Days (determination, the Special Servicer or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available , as applicable, shall deliver to the applicable Master Servicer in order to make an informed decisionMajority Subordinate Certificateholder, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved the Trustee, the Rating Agencies and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with Special Servicer) an Officers' Certificate setting forth the basis for such determination. Neither the Master Servicer nor the Special Servicer shall (a) grant any such waiver in respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involvedfor any Mortgage Loan without receiving the prior written confirmation from the Rating Agencies that such action would not result in a downgrading, then, subject qualification or withdrawal of the ratings then assigned to the related Mortgage Loan Documents and applicable law, neither Certificates (the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable the Special Servicer, as applicable, shall be permitted use its reasonable efforts to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loanscost, if any, of obtaining such confirmation paid by the Mortgagor; if such cost is not paid by the Mortgagor, the Master Servicer shall advance such amount as a Servicing Advance, unless such Advance would be a Nonrecoverable Advance) or (b) grant a waiver in respect of a due on sale provision for any Mortgage Loan (or a group of Mortgage Loans that are cross-collateralized or cross defaulted with each other or which relate to a single Mortgagor or group of affiliated Mortgagors) that has a then current stated Principal Balance at the time of such determination either (i) in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one excess of 5% of the then-aggregate the current top ten Stated Principal Balance of all Mortgage Loans or (by Stated Principal Balanceii) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,00020 million, without receiving the prior written confirmation from the Rating Agencies that such action would not result in a downgrading, qualification or has withdrawal of the ratings then assigned to the Certificates (the Master Servicer or the Special Servicer, as applicable, shall use its reasonable efforts to have the cost, if any, of obtaining such confirmation paid by the Mortgagor; if such cost is not paid by the Mortgagor, the Master Servicer shall advance such amount as a Stated Servicing Advance, unless such Advance would be a Nonrecoverable Advance); provided that with respect to DCR, such prior written confirmation shall be required in all instances of transfers and encumbrances only to the extent the Principal Balance that at the time of determination equals or exceeds 52% of the then-aggregate Stated Principal Balance of the all Mortgage PoolLoans. In all cases, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs DCR shall be paid by provided with the Special Servicer's analysis, recommendation and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.relevant documents..
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass THR Cert Ser 1998-C2)
Enforcement of Alienation Clauses. (a) If the provisions Upon receipt of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation waiver in respect of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provision, the Master Servicer, with respect to Mortgage Loans (other than the 2004-C10 Serviced Mortgage Loan) that are not Specially Serviced Mortgage Loans, and the Special Servicer, with respect to Specially Serviced Mortgage Loans, shall promptly analyze such waiver, including the preparation of written materials in connection with such analysis, and will close the related transaction, subject to the consent rights (if any) of each Companion Holder pursuant to the related Intercreditor Agreement as provided that in this Section 3.08. With respect to all Mortgage Loans other than Specially Serviced Mortgage Loans and the 2004-C10 Serviced Mortgage Loan, the Master Servicer or, in the case of Specially Serviced Mortgage Loans, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers of interests in the related Mortgagor, unless following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), its receipt of a request of a waiver in respect of a due-on-sale or due-on-encumbrance provision the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained (with the written consent of the applicable Special Servicer Servicer, which consent shall be deemed given if not denied within the later of (it being understood and agreed that (1a) 15 Business Days after the applicable Special Servicer's receipt of the written recommendation of the Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment action and assumption or such encumbrance, (y) any additional information the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request for the analysis of such request (such recommendation and information may be delivered in order an electronic format reasonably acceptable to withhold or grant any such consent, (2the Master Servicer and the Special Servicer) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3b) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time Controlling Class Representative's (and with respect to the Park Place Mall Whole Loan, the Park Place Mall Representative's) receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative (and with respect to the Park Place Mall Whole Loan, the Park Place Mall Representative) may reasonably request for the analysis of such request, which notice shall be given by the Special Servicer no later than 10 Business Days after the commencement of the 15 Business Day period provided for described in the related Intercreditor Agreementpreceding clause (a)) or the Special Servicer (with the written consent of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations Controlling Class Representative (and analysis and all information reasonably requested thereby and reasonably available with respect to the applicable Master Servicer in order to make an informed decisionPark Place Mall Whole Loan, such the Park Place Mall Representative), which consent shall be deemed given if not denied within five Business Days after the Controlling Class Representative's (and with respect to have been granted;
the Park Place Mall Whole Loan, the Park Place Mall Representative's) receipt of the written recommendation of the Special Servicer for such action and any additional information the Controlling Class Representative (Band with respect to the Park Place Mall Whole Loan, the Park Place Mall Representative) if approval may reasonably request for the analysis of such request), as applicable, has determined, consistent with the Servicing Standard, that the waiver of such restrictions would be in accordance with the Servicing Standard. Promptly after the Master Servicer (with the written consent of the Special Servicer to the extent required in the preceding sentence) or the Special Servicer (with the written consent of the Controlling Class Representative (and with respect to the Park Place Mall Whole Loan, the Park Place Mall Representative) to the extent required in the preceding sentence), as applicable, has made any such determination, the Master Servicer or the Special Servicer shall deliver to the Trustee, the Rating Agencies and each other party hereto an assignment Officer's Certificate setting forth the basis for such determination. Neither the Master Servicer nor the Special Servicer shall exercise (and assumption or the Special Servicer shall not consent to) any such waiver in respect of a due-on-sale encumbrance provision is involved of any Mortgage Loan (i) with respect to which the aggregate of the Stated Principal Balance of such Mortgage Loan and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, are one of the ten largest Mortgage Loans or concentrations of Mortgage Loans, if anyas of the date of such waiver request, without receiving prior written confirmation from S&P and Xxxxx'x that are such action would not result in a downgrading, qualification or withdrawal of the same Cross-Collateralized Group as ratings then assigned to the Certificates or (ii) with respect to which (a) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the same Borrower as Mortgagor on such Mortgage Loan, is equal to or in excess of $20,000,000, (b) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have Borrowers that are known been made to be Mortgagors affiliated with the Borrower under Mortgagor on such Mortgage Loan, are greater than 2% of the aggregate Stated Principal Balance of all Mortgage Loans (or 5% of such aggregate Stated Principal Balance if such aggregate Stated Principal Balance is less than $100 million), or (c) such Mortgage Loan is one of the ten largest Mortgage Loans as of the date of the waiver (by Stated Principal Balance), without receiving prior written confirmation from Xxxxx'x that such action would not result in a downgrading, qualification or withdrawal of the ratings then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject assigned to the related Mortgage Loan Documents Certificates and applicable law, neither the applicable Master Servicer (iii) with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan which (a) represents 2% the criteria set forth in clause (ii)(a), (ii)(b) or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (ii)(c) have been met or (b) is one of the ten largest such Mortgage Loans then in the Trust Fund by principal balance, (c) Loan has an aggregate loana Loan-to-value ratio Value Ratio (including existing and proposed calculated to include the additional debtindebtedness secured by any encumbrance) that is equal to or greater than 85% and a Debt Service Coverage Ratio (calculated to include the additional debt from any encumbrance) of 1.2x or (d) has an aggregate debt service coverage ratio (including less, without receiving a prior written confirmation from S&P that such action would not result in a downgrading, qualification or withdrawal of the debt service on ratings then assigned to the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or Certificates. With respect to a waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable lawprovision, neither the Master Servicer nor the Special Servicer shall waive any such restriction with respect to which (a) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, is equal to or in excess of $35,000,000 (or $25,000,000 with respect to Xxxxx'x), (b) the aggregate of the Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that are cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, is greater than 5% of the aggregate Stated Principal Balance of all Mortgage Loans or (c) such Mortgage Loan is one of the ten largest Mortgage Loans as of the date of the waiver by Stated Principal Balance, without receiving prior written confirmation from S&P and Xxxxx'x that such action would not result in a downgrading, qualification or withdrawal of the ratings then assigned to the Certificates; provided that, if the Mortgage Loan does not meet the criteria set forth in clauses (i), (iii)(a), or (iii)(b) of the immediately preceding sentence, the Master Servicer or the Special Servicer, as applicable, may waive such requirement without confirmation by S&P in accordance with the Servicing Standard; and provided, further, that, if the Mortgage Loan does not meet the criteria set forth in clause (ii) of the immediately preceding sentence, the Master Servicer or Special Servicer, as applicable, may waive such requirement without approval by S&P or Xxxxx'x in accordance with the Servicing Standard. With respect to each Co-Lender Loan, no waiver of a due-on-sale or due-on-encumbrance provision will be effective unless the Master Servicer or Special Servicer, as applicable, first consults with the related Subordinate Companion Holder if required under the applicable Intercreditor Agreement.
(b) Notwithstanding any other provisions of this Section 3.08, the Master Servicer (with respect to a Performing Mortgage Loans other than Specially Serviced Mortgage Loan and, if applicable, any related Performing Loans and the 2004-C10 Serviced Pari Passu Companion LoanMortgage Loan)(without the Special Servicer's consent) nor or the applicable Special Servicer (with respect to a Specially Serviced Mortgage LoanLoans) shall enter into such approval or waiver with respect may grant, without any Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor's request for consent to any subject the related Mortgaged Property which secures a Crossto an easement or right-Collateralized Group unless (i) all of-way for utilities, access, parking, public improvements or another purpose, and may consent to subordination of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither to such easement or right-of-way provided the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable the Special Servicer, as applicable, shall be permitted to deny have determined in accordance with the Servicing Standard that such easement or right-of-way shall not materially interfere with the then-current use of the related request;Mortgaged Property, or the security intended to be provided by such Mortgage, the related Mortgagor's ability to repay the Mortgage Loan, or materially or adversely affect the value of such Mortgaged Property or cause the Mortgage Loan to cease to be a qualified mortgage loan for REMIC purposes.
(Fc) neither Within ninety (90) days of the applicable Master Servicer (Closing Date, with respect to a Performing Serviced each of the Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor Loans (other than the applicable Special Servicer (with respect to a Specially 2004-C10 Serviced Mortgage Loan) covered by an environmental insurance policy, the Master Servicer shall notify the insurer under such environmental insurance policy and take all other action necessary for the Trustee, on behalf of the Certificateholders, to be an insured (and for the Master Servicer, on behalf of the Trust Fund, to make claims) under such environmental insurance policy. In the event that the Master Servicer has actual knowledge of any event (an "Insured Environmental Event") giving rise to a claim under any environmental insurance policy in respect of any Mortgage Loan covered thereby, the Master Servicer shall, in accordance with the terms of such environmental insurance policy and the Servicing Standard, timely make a claim thereunder with the appropriate insurer and shall take such other actions in accordance with the Servicing Standard which are necessary under such environmental insurance policy in order to realize the full value thereof for the benefit of the Certificateholders. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such approval or waiver, consent or agree claim under an environmental insurance policy shall be paid by the Master Servicer and shall be reimbursable to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with it as a Servicing Advance. With respect to any REMIC Pool each environmental insurance policy that relates to one or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op more Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion Loans (other than confirming the satisfaction of the other conditions to the transaction set forth in the related 2004-C10 Serviced Mortgage Loan Documents that do not include any other approval or exercise of discretionLoan). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive review and familiarize itself with the terms and conditions relating to enforcement of claims and shall monitor the dates by which any right it has, claim must be made or grant any consent it is otherwise entitled action must be taken under such policy to withhold, realize the full value thereof for the benefit of the Certificateholders in accordance with the event the Master Servicer has actual knowledge of an Insured Environmental Event giving rise to a claim under such policy. In the event that the Master Servicer receives notice of any related “duetermination of any environmental insurance policy that relates to one or more Mortgage Loans (other than the 2004-on-encumbrance” clause under any C10 Serviced Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder), the applicable Master Servicer shall, within five Business Days after receipt of such notice, notify the Special Servicer, the Controlling Class Representative, the related Companion Holder (in the case of a Performing Co-Lender Loan), the Rating Agencies and the Trustee of such termination in writing. Upon receipt of such notice, the Master Servicer with respect to non-Specially Serviced Mortgage Loans (other than the 2004-C10 Serviced Mortgage Loan) or ), and the applicable Special Servicer (in the case of a with respect to Specially Serviced Mortgage LoanLoans, shall address such termination in accordance with Section 3.07(a) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower same manner as it would the termination of any other Insurance Policy required under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without documents. Any legal fees, premiums or other out-of-pocket costs incurred in accordance with the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth Servicing Standard in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including connection with a consent to transfer to any subsidiary or affiliate resolution of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is termination of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs environmental insurance policy shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer and shall be entitled reimbursable to collect and receive from Borrowers any customary fees in connection with such transfers of interest it as Additional Master a Servicing CompensationAdvance.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Commercial Mortgage Securities Inc)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan or a Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan or a Performing Serviced Pari Passu Companion Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such the Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) 5 Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each a Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan SecuritiesConfirmation; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan, and, if applicable, any related Performing Serviced Pari Passu Companion Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan, and, if applicable, any related Performing Serviced Pari Passu Companion Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Upon receiving a request for any matter described in this Section 3.08(a) that constitutes a Special Servicer Decision or a Material Action (without regard to the proviso in the definition of “Special Servicer Decision” or “Material Action”, as applicable) with respect to a Performing Serviced Mortgage Loan or a Performing Serviced Pari Passu Companion Loan, the Master Servicer shall forward such request to the Special Servicer and, unless the Master Servicer and the Special Servicer mutually agree that the Master Servicer shall process such request, the Special Servicer shall process such request and the Master Servicer shall have no further obligation with respect to such request or such Special Servicer Decision or Material Action. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan other than a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan and with respect to any such matter that constitutes a Special Servicer Decision or a Material Action on a Performing Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable The Master Servicer shall have the right to grant its consent to the same consent, without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if to any transfers of an interest in the Borrower under a Performing Serviced Mortgage Loan, to the extent such transfer (i) is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such BorrowerBorrower and (ii) is with respect to a Mortgage Loan as to which a Rating Agency Confirmation is not required under Section 3.08(a)(B) or (C) above; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-then aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.to
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Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2013-C17)
Enforcement of Alienation Clauses. (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case Person upon the satisfaction of specified conditions, prohibits such an assignment and or assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transferassumption, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided provided, however, that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion that is a Pooled Mortgage Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbranceassumption, (y) the applicable Master Servicer’s written 's recommendations and analysis, and (z) with all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) except with respect to any Nationwide Pooled Mortgage Loan, if any such consent has not been expressly denied within fifteen (15) seven Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s 's receipt from the applicable Master Servicer of the applicable such Master Servicer’s written 's recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted, and (4) solely with respect to any Nationwide Pooled Mortgage Loan, any such consent shall be deemed to have been granted if such consent has not been expressly denied either (x) within ten Business Days of the Special Servicer's receipt of the applicable Master Servicer's recommendations and analysis, if the Special Servicer has not requested additional information as described above on or before the date that is four Business Days following the Special Servicer's initial receipt of the applicable Master Servicer's recommendations and analysis, or (y) within six Business Days following the Special Servicer's receipt of the additional information requested by the Special Servicer as described above, if the Special Servicer has requested such additional information on or before the date that is four Business Days following the Special Servicer's initial receipt of the applicable Master Servicer's recommendations and analysis);
(B1) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Pooled Mortgage Loan that (together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan) is one of the ten largest Pooled Mortgage Loans then in the Trust, Trust or has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Pooled Mortgage Loan and, if applicable, any related Performing other than a Specially Serviced Pari Passu Companion Pooled Mortgage Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates and (2) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Pooled Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the Special Servicer (if such Serviced Pooled Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) unless and in the case of a Serviced Loan Combination, the equivalent until it has received written confirmation from each Pari Passu Companion applicable Rating Agency with respect to for the related Serviced 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities; andSecurities that such action would not result in an Adverse Rating Event with respect to any class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(C1) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation that such approval or waiver is the subject action would not result in an Adverse Rating Event with respect to any Class of a Rated Certificates from each Rating Agency Confirmation (subject Agency, with respect to Section 3.27) if the related any Serviced Pooled Mortgage Loan that (a) represents 2% or more of the then-then aggregate principal balance of all of the Pooled Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Pooled Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x1.2x and (2) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved and the affected Serviced Mortgage Loan is the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (if such Serviced Pooled Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor the Special Servicer (if such Serviced Pooled Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into such approval or waiver unless and until it has received written confirmation from each applicable Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities that such action would not result in an Adverse Rating Event with respect to any class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable a Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Controlling Class Representative, Representative if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable3.24);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any confirmation(s) of the absence of an Adverse Rating Agency ConfirmationEvent) are covered without any expense to the Trust or (in the case of a the Serviced Mortgage Loan CombinationGroup) any expense to any related Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request);
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an any Adverse Grantor Trust Event with respect to the either Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable a Master Servicer’s 's recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable3.24. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s 's approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer if (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(aa) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretionexercise). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “"due-on-sale” " or “"due-on-encumbrance” " clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the The applicable Master Servicer shall have the right to grant its consent to any transfers of an interest in the same without Borrower under a Performing Serviced Mortgage Loan, to the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if extent such transfer is allowed under the terms of the related Mortgage Loan Documents (without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtednessdiscretion), including a any consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided provided, however, that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Pooled Mortgage Loan that, together with all other Pooled Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Pooled Mortgage Loan, has a Stated Principal Balance that equals or exceeds 5% of the then aggregate Stated Principal Balance of the Mortgage Pool or is one of the then-then current top ten Pooled Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, Pool or has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing)%, then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a it has received written confirmation from each Rating Agency Confirmation that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense); provided, further, however, that, subject to Section 3.27the terms of the related Mortgage Loan Documents and applicable law, if (i) (and, in the case of any applicable affected Serviced Mortgage Loan that is part the 11 Penn Plaza Pooled Mortgage Loan or the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan, and (ii) the transfer is of a Loan Combinationan interest in the Borrower greater than 49%, an analogous rating agency then the applicable Master Servicer shall not consent to such transfer unless and until it has received written confirmation from each Rating Agency for the Rated Certificates that such action would not result in an Adverse Rating Event with respect to any Class of Rated Certificates rated by such Rating Agency and also a written confirmation from each applicable Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities that such action would not result in an Adverse Rating Agency, if applicable pursuant Event with respect to Section 3.27(k)) any class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2004-Pwr6)
Enforcement of Alienation Clauses. (a) If the provisions Upon receipt of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver respect of a due-on-sale (including, without limitation, a sale of a Mortgaged Property (in full or in part) or a sale, transfer, pledge or hypothecation of direct or indirect interests in a Mortgagor or its owners) or due-on-encumbrance (including, without limitation, any mezzanine financing of a Mortgagor or a Mortgaged Property or a sale or transfer of preferred equity in a Mortgagor or its owners) provision is involved and the affected with respect to a Serviced Mortgage Loan is or a request by a Mortgagor for a determination with respect to a Serviced Mortgage Loan which by its terms permits transfer, assumption or further encumbrance without lender consent upon the satisfaction of certain conditions, that (together such conditions have been satisfied, the applicable Master Servicer shall promptly forward such request to the Special Servicer, who shall analyze such request, shall prepare all written materials in connection with such analysis, and shall, if it approves such request in accordance with the Servicing Standard, close the related transaction, subject to Section 3.26, Section 3.27 and Section 3.28, in each case if and as applicable, and any applicable intercreditor, co- lender or similar agreement. With respect to all other Serviced Mortgage Loans, the Special Servicer, on behalf of the Trustee as the mortgagee of record (or, in the case of a Serviced Non-Trust Mortgage Loan, on behalf of the related Serviced Non-Trust Mortgage Loan Noteholder), shall, to the extent permitted by applicable law, enforce the restrictions contained in the related Mortgage on transfers or further encumbrances of the related Mortgaged Property and on transfers of interests in the related Mortgagor, unless the Special Servicer, subject to Section 3.26, Section 3.27 and Section 3.28, in each case if anyand as applicable, has determined, consistent with the Servicing Standard, that are waiver of such restrictions would be in accordance with the same CrossServicing Standard. Promptly after the Special Servicer, subject to Section 3.26, Section 3.27 and Section 3.28, in each case if and as applicable, has made any such determination, such servicer shall deliver to the applicable Master Servicer, the Trustee, the Rating Agencies and each other party hereto an Officer's Certificate setting forth the basis for such determination. With respect to each such transaction approved and closed by the Special Servicer, the Special Servicer shall deliver copies of any amended or new documentation to the applicable Master Servicer as soon as reasonably practicable after the related closing. The Special Servicer shall not exercise any such waiver in respect of a due-Collateralized Group as such on-encumbrance provision of: (x) any Serviced Trust Mortgage Loan (i) with respect to which the aggregate of the Stated Principal Balance of such Trust Mortgage Loan and the Stated Principal Balance of all other Trust Mortgage Loans that are cross-collateralized with, cross-defaulted with or have the same Borrower as such Mortgage Loan or have Borrowers that are known been made to be Mortgagors affiliated with the Borrower under Mortgagor on such Trust Mortgage Loan, is equal to or in excess of $20,000,000, (ii) with respect to which the aggregate of the Stated Principal Balance of such Trust Mortgage Loan and the Stated Principal Balance of all other Trust Mortgage Loans that are cross-collateralized with, cross-defaulted with or have been made to Mortgagors affiliated with the Mortgagor on such Trust Mortgage Loan, are greater than 5% (or, with respect to S&P, 2%) of the aggregate Stated Principal Balance of all Trust Mortgage Loans or (iii) is one of the ten (10) largest Trust Mortgage Loans then as of the date of the waiver (by Stated Principal Balance), without receiving prior written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to the TrustCertificates (and if the subject Trust Mortgage Loan is part of a Loan Combination that includes a Specially Designated Non-Trust Mortgage Loan, without receiving prior written confirmation from each applicable Other Rating Agency that such action would not result in an Adverse Rating Event with respect to any related Specially Designated Non-Trust Mortgage Loan Securities); or (y) any Serviced Trust Mortgage Loan with respect to which the related Loan-to-Value Ratio (calculated to include the existing indebtedness secured by any encumbrance and the proposed additional debt) would be equal to or greater than 85% or the Debt Service Coverage Ratio (calculated to include the existing indebtedness secured by any encumbrance and the proposed additional debt) would be 1.2x or less, without receiving a prior written confirmation from S&P that such action would not result in an Adverse Rating Event with respect to the Certificates (and if the subject Trust Mortgage Loan is part of a Loan Combination that includes a Specially Designated Non-Trust Mortgage Loan, and if S&P has a Cutrated any of the related Specially Designated Non-off Date Trust Mortgage Loan Securities, without receiving written confirmation from S&P that such action would not result in an Adverse Rating Event with respect to such Specially Designated Non-Trust Mortgage Loan Securities). In addition, the Special Servicer shall not waive any due-on-sale provision of any Serviced Trust Mortgage Loan with respect to which (i) the aggregate of the Stated Principal Balance of such Trust Mortgage Loan and the Stated Principal Balance of all other Trust Mortgage Loans that are cross-collateralized with, cross-defaulted with or have been made to Mortgagors affiliated with the Mortgagor on such Trust Mortgage Loan, is equal to or in excess of $35,000,000 (or, in the case of Xxxxx'x, $20,000,000), or if a Serviced Loan Combination is involved, then, subject to (ii) the related aggregate of the Stated Principal Balance of such Trust Mortgage Loan Documents and applicable lawthe Stated Principal Balance of all other Trust Mortgage Loans that are cross-collateralized with, neither cross-defaulted with or have been made to Mortgagors affiliated with the applicable Master Servicer Mortgagor on such Trust Mortgage Loan, are greater than 5% of the aggregate Stated Principal Balance of all Trust Mortgage Loans or (iii) such Trust Mortgage Loan is one of the ten (10) largest Trust Mortgage Loans as of the date of the waiver (by Stated Principal Balance), without receiving prior written confirmation from each Rating Agency that such action would not result in an Adverse Rating Event with respect to a Performing Serviced the Certificates (and if the subject Trust Mortgage Loan andis part of a Loan Combination that includes a Specially Designated Non-Trust Mortgage Loan, without receiving prior written confirmation from each applicable Other Rating Agency that such action would not result in an Adverse Rating Event with respect to any related Specially Designated Non-Trust Mortgage Loan Securities). If a Trust Mortgage Loan does not meet the criteria set forth in clause (i), (ii) or (iii) of the preceding sentence or clause (x) or (y) of the second preceding sentence, if and as applicable, then the Special Servicer may waive the subject requirement without approval by any Rating Agency (or, if applicable, any Other Rating Agency) in accordance with the Servicing Standard. Any fees charged by the respective Rating Agencies in connection with obtaining any written rating confirmation contemplated above in this paragraph shall be charged to the Mortgagor unless prohibited by the related Performing Serviced Pari Passu Companion Loan) nor loan documents, in which case such fees shall be Additional Trust Fund Expenses paid out of the applicable Special Servicer Collection Account (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and or, in the case of a Serviced Loan Combination, shall be paid out of the equivalent confirmation from each Pari Passu Companion Rating Agency with respect related SLC Custodial Account), to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to extent that the related Mortgage Loan Documents and applicable lawSeller has not paid such fees, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special ServicerMortgage Loan Purchase Agreement, it has obtained the consent of the Subordinate Class Representativeprovided that, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, that any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that fees paid would result in an Adverse REMIC Event the failure to pay with respect to any REMIC Pool one or an Adverse Grantor Trust Event with respect more Classes of Regular Certificates any amount of principal or interest at the related Pass-Through Rate payable thereon (in each case by the time any such amounts are due and payable thereon), then such amounts shall be deemed to have been distributed to the Grantor Trust Pool; and
(Grelated Holder(s) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26from REMIC II, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoingtime paid, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding then paid by such Holder(s) and not by any REMIC Pool. If the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, neverthelessSpecial Servicer, in accordance with the Servicing Standard, without the need determines with respect to obtain any consent Serviced Mortgage Loan that by its terms permits transfer, assumption or approval hereunder (and without the need to obtain further encumbrance of a Rating Agency Confirmation), permit Serviced Mortgage Loan or the related Borrower to incur subordinate debt if Mortgaged Property, as applicable, without lender consent upon the NCBsatisfaction of certain conditions, FSB Subordinate Debt Conditions that such conditions have not been met; provided thatsatisfied, subject to then the related Mortgage Loan Documents and applicable lawSpecial Servicer may not permit such transfer, the NCB Master Servicer shall not waive any right it has, assumption or grant any consent it is otherwise entitled to withhold, further encumbrance. As used in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless the terms "sale", "transfer" and "encumbrance" include the matters contemplated by the parentheticals in the first sentence of this paragraph. None of the Master Servicers, the Special Servicer or a Sub-Servicer on behalf of any such case, all associated costs and expenses are covered without of them has the authority to perform any expense of the actions set forth above in this paragraph with respect to the TrustOutside Serviced Trust Mortgage Loans. Each request for rating confirmation contemplated by the foregoing paragraph shall be accompanied by a recommendation of whether to waive the subject restrictions and an analysis supporting such recommendation.
(b) In If the Special Servicer consents subsequent to the Closing Date to the incurrence by the principal(s) of a Mortgagor under a Serviced Mortgage Loan of mezzanine financing in accordance with the related loan documents and enters into an intercreditor agreement, the Special Servicer (to the extent it is permitted to do so under the related loan documents and applicable law and in accordance with the Servicing Standard) shall use reasonable efforts to require the related mezzanine lender to agree to pay a Liquidation Fee in connection with any permitted assumption of any purchase right that arises upon a Serviced Mortgage Loan or Serviced Loan Combination or waiver default in the event such purchase occurs after the expiration of a “60 days from the date the right to purchase arises under such mezzanine intercreditor agreement. The foregoing sentence shall not operate to modify the provisions of the preceding paragraph of this Section 3.08(a) regarding due-on-sale” or “sale and due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documentsencumbrance provisions.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in anything herein to the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loancontrary, the applicable Master Servicer shall have the right to grant its consent to the same approve and close, without the consent or approval of the applicable Special Servicer (Servicer, the Controlling Class Representative or the applicable Special Servicer interacting any Rating Agency, all initial syndications of tenant-in-common interests, provided that such syndications are specifically permitted by and in accordance with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of loan documents for any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan that is or relates to not a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Specially Serviced Mortgage Loan. Upon completion of any such initial transfer, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent promptly provide notice by electronic mail thereof to the Special Servicer, which notice shall also (i) advise the Special Servicer as to the total number of transfers with respect to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that such Master Servicer has approved and closed as of such date and the expiration date (if any) by which any such transfer(s) must occur pursuant to the related loan documents and (ii) advise the Special Servicer of when, with respect to any such Serviced Mortgage Loan, such tenant-in-common syndication is part complete. All transfers of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant tenant-in-common interest subsequent to Section 3.27(k)) (the costs of which are to initial syndication shall be payable processed and approved solely by the related Borrower to Special Servicer. Any request for a modification or extension of the extent provided for final initial syndication date respecting any such tenant-in-common transfers or increase in the related Mortgage Loan Documents, which provisions permitted number of tenant-in-common interests under the initial syndication shall not be waived processed and approved solely by the applicable Master Special Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Trust 2008-C7)
