Common use of Enforcement of Due-On-Sale Clauses; Assumption Agreements; Due Clause in Contracts

Enforcement of Due-On-Sale Clauses; Assumption Agreements; Due. On-Encumbrance Clause (a) In the event the Master Servicer receives a request from a Mortgagor pursuant to the provisions of any Mortgage Loan or Serviced Companion Loan (other than a Specially Serviced Mortgage Loan) that expressly permits, subject to any conditions set forth in the Mortgage Loan documents, the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan or Serviced Companion Loan by, another Person, the Master Servicer (or, if applicable, a Primary Servicer) shall obtain relevant information for purposes of evaluating such request and the Special Servicer shall have no obligation to review or consent to such request. For the purpose of the foregoing sentence, the term "expressly permits" shall include outright permission to assign, permission to assign upon satisfaction of certain conditions or prohibition against assignment except upon the satisfaction of stated conditions. With respect to each Mortgage Loan that does not "expressly permit" an assignment or assumption, if the Master Servicer (or, if such Mortgage Loan is serviced by a Primary Servicer, the Primary Servicer) recommends to approve such assignment, the Master Servicer shall provide to the Special Servicer and the Operating Adviser (and solely with respect to the Serviced Loan Group, the holder of the Serviced Companion Loan) (or, with respect to a recommendation by the Primary Servicer, to the Master Servicer, the Special Servicer and the Operating Adviser, simultaneously) a copy of such recommendation and the materials upon which such recommendation is based (which information shall consist of the information to be included in the Assignment and Assumption Submission to the Special Servicer, in the form attached hereto as Exhibit U) and all other information related to such assignment and assumption in its possession reasonably requested by the Special Servicer and (A) the Special Servicer shall have the right hereunder to grant or withhold consent to any such request for such assignment and assumption in accordance with the terms of the Mortgage Loan or Serviced Companion Loan and this Agreement, and the Special Servicer shall not unreasonably withhold such consent and any such decision of the Special Servicer shall be in accordance with the Servicing Standard, (B) failure of the Special Servicer to notify the Master Servicer in writing within ten Business Days following the Master Servicer's or the applicable Primary Servicer's delivery of the recommendation described above and the Assignment and Assumption Submission to the Special Servicer on which the recommendation is based, of its determination to grant or withhold such consent shall be deemed to constitute a grant of such consent; provided, that, if the Special Servicer reasonably requests additional information from the Master Servicer on which to base its decision, the foregoing ten Business Day period in which the Special Servicer has to consent to the Assignment and Assumption Submission shall cease to run on the Business Day on which the Special Servicer makes such request and shall resume to run on the Business Day on which the Special Servicer receives such additional information, and (C) the Master Servicer or Primary Servicer shall not permit any such assignment or assumption unless it has received the written consent of the Special Servicer or such consent has been deemed to have been granted as described in the preceding clause (B). The Special Servicer hereby acknowledges the delegation of rights and duties hereunder by the Master Servicer pursuant to the provisions of each Primary Servicing Agreement. If the Special Servicer withholds consent pursuant to the provisions of this Agreement, it shall provide the Master Servicer or any applicable Primary Servicer with a written statement and a verbal explanation as to its reasoning and analysis within the time frame specified in (B) of the preceding sentence. Upon consent or deemed consent by the Special Servicer to such proposed assignment and assumption, the Master Servicer shall process such request of the related Mortgagor and shall be authorized to enter into an assignment and assumption or substitution agreement with the Person 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 or Serviced Companion 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 create any lien on a Mortgaged Property that is senior to, or on parity with, the lien of the related Mortgage. In the event that the Master Servicer shall require a Nondisqualification Opinion in order to process a request for a substitution, the Master Servicer shall use its reasonable efforts in accordance with the Servicing Standard to collect the related costs, expenses and fees from the Mortgagor to the extent the related Mortgage Loan documents require the related Mortgagor to pay such amounts. To the extent permitted by applicable law, the Master Servicer shall not enter into such an assumption or substitution agreement unless the credit status of the prospective new Mortgagor is in conformity to the terms of the related Mortgage Loan, Serviced Companion Loan or Intercreditor Agreement. In making its recommendation, the Master Servicer shall evaluate such conformity in accordance with the Servicing Standard. The Master Servicer shall not condition approval of any request for assumption of a Mortgage Loan on an increase in the interest rate of such Mortgage Loan. The Master Servicer shall notify the Trustee, the Paying Agent, the Special Servicer and the Operating Adviser of any assignment and assumption or substitution agreement executed pursuant to this Section 8.7(a). The Master Servicer shall be entitled to (as additional servicing compensation) 50% of any assumption fee collected from a Mortgagor in connection with an assignment and assumption or substitution of a non-Specially Serviced Mortgage Loan (except that with respect to the UCMFI Loans, such Master Servicer shall be entitled to 100% of such fee in connection with (a) any assignment and assumption or substitution with respect to which the consent of the Special Servicer was not required or (b) any assignment and assumption or substitution that is "expressly permitted" pursuant to the terms of the related Mortgage Loan), as executed pursuant to this Section 8.7(a) and the Special Servicer shall be entitled to (as additional special servicing compensation) the other 50% of such fee relating to the non-Specially Serviced Mortgage Loans (except with respect to the Mortgage Loans sold to the Trust by UCMFI, with respect to which such Special Servicer's consent was not required in connection therewith); provided that any such fees payable to the Master Servicer pursuant to this paragraph shall be divided between the Master Servicer and any related Primary Servicer as set forth in the applicable Primary Servicing Agreement. The Special Servicer acknowledges that the Master Servicer has delegated certain tasks, rights and obligations to the Primary Servicers of the UCMFI Loans, the Principal Loans, the WaMu Loans and the JHREF Loans and with respect to Post Closing Requests (as defined in the applicable Primary Servicing Agreements) pursuant to Section 8.4 of this Agreement. Such Primary Servicing Agreements classify certain Post Closing Requests as Category 1 Requests (as defined in the Primary Servicing Agreements), and grant the related Primary Servicers certain authority to evaluate and process such requests in accordance with this Agreement, the applicable Primary Servicing Agreement and the applicable Mortgage Loan documents.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 IQ8), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 IQ8), Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2004 IQ8)

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Enforcement of Due-On-Sale Clauses; Assumption Agreements; Due. On-Encumbrance Clause (a) In the event the a Master Servicer receives a request from a Mortgagor pursuant to the provisions of any Mortgage Loan or Serviced Companion Loan (other than a Specially Serviced Mortgage Loan) that expressly permits, subject to any conditions set forth in the Mortgage Loan documents, the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan or Serviced Companion Loan by, another Person, the such Master Servicer (or, if applicable, a Primary Servicer) shall obtain relevant information for purposes of evaluating such request and the no Special Servicer shall have no an obligation to review or consent to such request. For the purpose of the foregoing sentence, the term "expressly permits" shall include outright permission to assign, permission to assign upon satisfaction of certain conditions or prohibition against assignment except upon the satisfaction of stated conditions. With respect to each Mortgage Loan that does not "expressly permit" an assignment or assumption, if the such Master Servicer (or, if such Mortgage Loan is serviced by a Primary Servicer, the Primary Servicer) recommends to approve such assignment, the Master Servicer shall provide to the applicable Special Servicer and the Operating Adviser (and solely with respect to the Serviced Loan Group, the holder of the Serviced Companion Loan) (or, with respect to a recommendation by the Primary Servicer, to the applicable Master Servicer, the Special Servicer and the Operating Adviser, simultaneously) a copy of such recommendation and the materials upon which such recommendation is based (which information shall consist of the information to be included in the Assignment and Assumption Submission to the applicable Special Servicer, in the form attached hereto as Exhibit U) and all other information related to such assignment and assumption in its possession reasonably requested by the Special Servicer and (A) the applicable Special Servicer shall have the right hereunder to grant or withhold consent to any such request for such assignment and assumption in accordance with the terms of the Mortgage Loan or Serviced Companion Loan and this Agreement, and the such Special Servicer shall not unreasonably withhold such consent and any such decision of the such Special Servicer shall be in accordance with the Servicing Standard, (B) failure of the applicable Special Servicer to notify the Master Servicer in writing within ten Business Days following the such Master Servicer's or the applicable Primary Servicer's delivery of the recommendation described above and the Assignment and Assumption Submission to the Special Servicer on which the recommendation is based, of its determination to grant or withhold such consent shall be deemed to constitute a grant of such consent; provided, that, if the applicable Special Servicer reasonably requests additional information from the Master Servicer on which to base its decision, the foregoing ten Business Day period in which the Special Servicer has to consent to the Assignment and Assumption Submission shall cease to run on the Business Day on which the Special Servicer makes such request and shall resume to run on the Business Day on which the Special Servicer receives such additional information, and (C) the Master Servicer or Primary Servicer shall not permit any such assignment or assumption unless it has received the written consent of the applicable Special Servicer or such consent has been deemed to have been granted as described in the preceding clause (B). The Special Servicer Servicers hereby acknowledges acknowledge the delegation of rights and duties hereunder by the Master Servicer Servicers pursuant to the provisions of each Primary Servicing Agreement. If the a Special Servicer withholds consent pursuant to the provisions of this Agreement, it shall provide the applicable Master Servicer or any applicable Primary Servicer with a written statement and a verbal explanation as to its reasoning and analysis within the time frame specified in (B) of the preceding sentence. Upon consent or deemed consent by the such Special Servicer to such proposed assignment and assumption, the applicable Master Servicer shall process such request of the related Mortgagor and shall be authorized to enter into an assignment and assumption or substitution agreement with the Person 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 or Serviced Companion 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 applicable Master Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the lien of the related Mortgage. In the event that the applicable Master Servicer shall require a Nondisqualification Opinion in order to process a request for a substitution, the such Master Servicer shall use its reasonable efforts in accordance with the Servicing Standard to collect the related costs, expenses and fees from the Mortgagor to the extent the related Mortgage Loan documents require the related Mortgagor to pay such amounts. To the extent permitted by applicable law, the Master Servicer Servicers shall not enter into such an assumption or substitution agreement unless the credit status of the prospective new Mortgagor is in conformity to the terms of the related Mortgage Loan, Serviced Companion Loan or Intercreditor Agreement. In making its recommendation, the Master Servicer Servicers shall evaluate such conformity in accordance with the Servicing Standard. The Master Servicer Servicers shall not condition approval of any request for assumption of a Mortgage Loan on an increase in the interest rate of such Mortgage Loan. The Each Master Servicer shall notify the Trustee, the Paying Agent, the applicable Special Servicer and the Operating Adviser of any assignment and assumption or substitution agreement executed pursuant to this Section 8.7(a). The Each Master Servicer Servicer, as applicable, shall be entitled to (as additional servicing compensation) 50% of any assumption fee collected from a Mortgagor in connection with an assignment and assumption or substitution of a non-Specially Serviced Mortgage Loan (except that with respect to the UCMFI Loans, such Master Servicer shall be entitled to 100% of such fee in connection with (a) any assignment and assumption or substitution with respect to which the consent of the Special Servicer was not required or (b) any assignment and assumption or substitution that is "expressly permitted" pursuant to the terms of the related Mortgage Loan), as executed pursuant to this Section 8.7(a) and the applicable Special Servicer shall be entitled to (as additional special servicing compensation) the other 50% of such fee relating to the non-Specially Serviced Mortgage Loans (except with respect to the Mortgage Loans sold to the Trust by UCMFI, with respect to which such Special Servicer's consent was not required in connection therewith); provided that any such fees payable to the a Master Servicer pursuant to this paragraph shall be divided between the such Master Servicer and any related Primary Servicer as set forth in the applicable Primary Servicing Agreement. The General Special Servicer acknowledges that the General Master Servicer has delegated certain tasks, rights and obligations to the Primary Servicers of the UCMFI Loans, the Principal Loans, the WaMu Loans and the JHREF MM Loans and with respect to Post Closing Requests (as defined in the applicable Primary Servicing Agreements) pursuant to Section 8.4 of this Agreement. Such Primary Servicing Agreements classify certain Post Closing Requests as Category 1 Requests (as defined in the Primary Servicing Agreements), and grant the related Primary Servicers certain authority to evaluate and process such requests in accordance with this Agreement, the applicable Primary Servicing Agreement and the applicable Mortgage Loan documents.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2005 IQ9)

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Enforcement of Due-On-Sale Clauses; Assumption Agreements; Due. On-Encumbrance Clause. (a) In the event the Master Primary Servicer receives a request from a Mortgagor Borrower pursuant to the provisions of any Mortgage Loan or Serviced Companion Loan (other than a Specially Serviced Mortgage Loan) that expressly permits, subject to any conditions set forth in the Mortgage Loan documents, for the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan or Serviced Companion Loan by, another Person, the Master Primary Servicer (or, if applicable, a Primary Servicer) shall obtain relevant information for purposes of evaluating such request and the no Master Servicer or Special Servicer shall have no an obligation to review or consent to such request. For the purpose of the foregoing sentence, the term "expressly permits" shall include mean that the mortgage loan documents grant to the borrower the outright permission to assign, permission assign the mortgaged property to assign upon satisfaction and cause the assumption of certain the mortgage loan by another person or entity if the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or prohibition against assignment except upon the exercise of lender discretion (other than confirming the satisfaction of stated conditionsthe other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise). With respect to each Mortgage Loan that does not "expressly permit" an assignment or and assumption, if the Master Primary Servicer (or, if such Mortgage Loan is serviced by a Primary Servicer, the Primary Servicer) recommends to approve such assignment, the Master Primary Servicer shall provide to the Special Master Servicer and the Operating Adviser (and solely with respect to the Serviced Loan Group, the holder of the Serviced Companion Loan) (or, with respect to a recommendation by the Primary Servicer, to the Master Servicer, the Special Servicer and the Operating Adviser, simultaneously) a copy of such recommendation and the materials upon which such recommendation is based (which information shall consist of the information to be included in the Assignment and Assumption Submission to the Special Servicer, in the form attached hereto as Exhibit UL) and all other information related to the Primary Servicer shall, on behalf of the Master Servicer, obtain the Special Servicer's consent in accordance with Section 3.20 of the Pooling and Servicing Agreement before the completion of such assignment and assumption in its possession reasonably requested by the Special Servicer and (A) the Special Servicer shall have the right hereunder to grant or withhold consent to any such request for such assignment and assumption in accordance with the terms of the Mortgage Loan or Serviced Companion Loan and this Agreement, and the Special Servicer shall not unreasonably withhold such consent and any such decision of the Special Servicer shall be in accordance with the Servicing Standard, (B) failure of the Special Servicer to notify the Master Servicer in writing within ten Business Days following the Master Servicer's or the applicable Primary Servicer's delivery of the recommendation described above and the Assignment and Assumption Submission to the Special Servicer on which the recommendation is based, of its determination to grant or withhold such consent shall be deemed to constitute a grant of such consent; provided, that, if the Special Servicer reasonably requests additional information from the Master Servicer on which to base its decision, the foregoing ten Business Day period in which the Special Servicer has to consent to the Assignment and Assumption Submission shall cease to run on the Business Day on which the Special Servicer makes such request and shall resume to run on the Business Day on which the Special Servicer receives such additional information, and (C) the Master Servicer or Primary Servicer shall not permit any such assignment or assumption unless it has received the written consent of the Special Servicer or such consent has been deemed to have been granted as described in the preceding clause (B). The Special Servicer hereby acknowledges the delegation of rights and duties hereunder by the Master Servicer pursuant to the provisions of each Primary Servicing Agreement. If the Special Servicer withholds consent pursuant to the provisions of this Agreement, it shall provide the Master Servicer or any applicable Primary Servicer with a written statement and a verbal explanation as to its reasoning and analysis within the time frame specified in (B) of the preceding sentenceassumption. Upon consent or deemed consent by the Special Servicer to such proposed assignment and assumption, or in the case where the Master Servicer and/or Special Servicer consent is not required, the Primary Servicer shall process such request of the related Mortgagor Borrower and shall be authorized to enter into an assignment and assumption or substitution agreement with the Person to whom the related Mortgaged Property has been or is proposed to be conveyed, and/or release the original Mortgagor Borrower from liability under the related Mortgage Loan or Serviced Companion Non-Pooled 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 create any lien on a Mortgaged Property that is senior to, or on parity with, the lien of the related Mortgage. In the event that the Master Servicer shall require a Nondisqualification Opinion in order to process a request for a substitution, the Master Servicer shall use its reasonable efforts in accordance with the Servicing Standard to collect the related costs, expenses and fees from the Mortgagor to the extent the related Mortgage Loan documents require the related Mortgagor to pay such amounts. To the extent permitted by applicable law, the Master Primary Servicer shall not enter into such an assumption or substitution agreement unless the credit status of the prospective new Mortgagor Borrower is in conformity to the terms of the related Mortgage LoanLoan documents, Serviced Companion Non-Pooled Mortgage Loan or Intercreditor Agreement. In making its recommendation, the Master Servicer shall evaluate such conformity in accordance with the Servicing Standard. The Master Servicer shall not condition approval of any request for assumption of a Mortgage Loan on an increase in the interest rate of such Mortgage Loan. The Master Primary Servicer shall notify the Master Servicer, the Trustee, the Paying Agent, Certificate Administrator and the Special Servicer and the Operating Adviser of any assignment and assumption or substitution agreement executed pursuant to this Section 8.7(a)3.08. The Master Servicer shall be entitled to (as As additional servicing compensation) 50% of , the Master Servicer, the Primary Servicer and the Special Servicer will be entitled, in accordance with Section 3.09, to any assumption fee fees collected from a Mortgagor Borrower in connection with an assignment and assumption or substitution of a non-Specially Serviced Mortgage Loan (except that with respect to the UCMFI Loans, such Master Servicer shall be entitled to 100% of such fee in connection with (a) any assignment and assumption or substitution with respect to which the consent of the Special Servicer was not required or (b) any assignment and assumption or substitution that is "expressly permitted" pursuant to the terms of the related Mortgage Loan), as executed pursuant to this Section 8.7(a) and the Special Servicer shall be entitled to (as additional special servicing compensation) the other 50% of such fee relating to the non-Specially Serviced Mortgage Loans (except with respect to the Mortgage Loans sold to the Trust by UCMFI, with respect to which such Special Servicer's consent was not required in connection therewith); provided that any such fees payable to the Master Servicer pursuant to this paragraph shall be divided between the Master Servicer and any related Primary Servicer as set forth in the applicable Primary Servicing Agreement. The Special Servicer acknowledges that the Master Servicer has delegated certain tasks, rights and obligations to the Primary Servicers of the UCMFI Loans, the Principal Loans, the WaMu Loans and the JHREF Loans and with respect to Post Closing Requests (as defined in the applicable Primary Servicing Agreements) pursuant to Section 8.4 of this Agreement. Such Primary Servicing Agreements classify certain Post Closing Requests as Category 1 Requests (as defined in the Primary Servicing Agreements), and grant the related Primary Servicers certain authority to evaluate and process such requests in accordance with this Agreement, the applicable Primary Servicing Agreement and the applicable Mortgage Loan documents3.08.

Appears in 1 contract

Samples: Primary Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2006-Pwr11)

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