Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions: (i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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; (ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan; (iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend); (iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions); (v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee; (vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower; (vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s
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)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, Except as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(ithis Section 3.20(a) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)3.08, the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term ofa Mortgage Loan, and, except as provided in the following paragraph and in Section 3.20(d), no Mortgage Loan that is not a Specially Serviced Mortgage Loan may be modified, waived or take any amended, provided, that the Special Servicer may agree to extend the maturity date of the other acts referenced in a Mortgage Loan that is not a Specially Serviced Mortgage Loan, provided, further, that no such extension entered into pursuant to this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing shall be for a period of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt more than twelve months from the applicable Master Servicer original maturity date 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a maturity date beyond the earlier of (Ai) five two years prior to the Rated Final Distribution Date and (Bii) if such in the case of a Mortgage Loan is secured by a Mortgage solely or primarily on leasehold estate, the related Borrower’s leasehold interest in the related Mortgaged Property, 20 date ten years (or, prior to the extent consistent expiration of such leasehold estate. If such extension would extend the Maturity Date of a Mortgage Loan for more than twelve months from and after the original maturity date of such Mortgage Loan, the Special Servicer must provide the Trustee with an opinion of counsel that such extension would not constitute a "significant modification" of the Servicing StandardMortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b). Any substitution of collateral shall be treated hereunder as a modification or amendment of the applicable Mortgage Loan. Notwithstanding the foregoing, giving due consideration the Servicer may modify or amend the terms of any Mortgage Loan without the consent of the Special Servicer in order to (i) cure any ambiguity therein or (ii) correct or supplement any provisions therein which may be inconsistent with any other provisions therein or correct any error, provided that such modification or amendment would not be a "significant modification" of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b), and provided further that the proposed modification or amendment will not cause (x) either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or (y) either the Upper-Tier REMIC or the Lower-Tier REMIC to be subject to any tax under the REMIC Provisions. Notwithstanding the foregoing, the Special Servicer shall not permit the substitution of any Mortgaged Property (or any portion thereof) pursuant to the remaining term terms of the related Ground Lease or Space Lease, ten years) prior Mortgage Loan documents unless it has received an Opinion of Counsel to the end effect that (i) such substitution will not cause the related Mortgage Loan to fail to qualify as a "qualified mortgage" for REMIC purposes, (ii) such substitution will not affect the status as a REMIC of either the Upper-Tier REMIC or the Lower-Tier REMIC, and (iii) such substitution will not subject the Trust Fund, the Upper-Tier REMIC or the Lower-Tier REMIC to any tax.
(b) If, but only if, the Special Servicer determines that a modification, waiver or amendment (including, without limitation, the forgiveness or deferral of interest or principal or the substitution of collateral pursuant to the terms of the then-current term Mortgage Loan or otherwise, the release of collateral or the pledge of additional collateral) of the terms of a Specially Serviced Mortgage Loan with respect to which a payment default or other material default has occurred or a payment default is, in the Special Servicer's judgment, reasonably foreseeable (as evidenced by an Officer's Certificate of the Special Servicer), is reasonably likely to produce a greater recovery on a present value basis (the relevant discounting to be performed at the related Ground Lease or Space Lease (plus any unilateral options to extend);
(ivMortgage Rate) neither than liquidation of such Specially Serviced Mortgage Loan, then the applicable Master Servicer nor the applicable Special Servicer shall make may, but is not required to, with the approval or permit any deemed approval of the Extension Adviser, in the case of an extension of the maturity of a Specially Serviced Mortgage Loan beyond the third anniversary of such Mortgage Loan's original maturity date, agree to a modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Specially Serviced Mortgage Loan, unless immediately after subject to the release provisions of such portion of this Section 3.20(b) and Section 3.20(c). The Special Servicer shall use its best efforts to the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the extent possible to cause each Specially Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided fully amortize prior to the Trustee;
(vi) subject Rated Final Distribution Date and shall not agree to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any a modification, waiver or amendment of any term of any Performing Specially Serviced Mortgage Loan if such modification, waiver or amendment would:
(i) extend the maturity date of any such Specially Serviced Mortgage Loan to a date occurring later than the earlier of (a) two years prior to the Rated Final Distribution Date and (b) if such Specially Serviced Mortgage Loan is secured by a leasehold estate, the date occurring ten years prior to the expiration of such leasehold; or
(ii) reduce the related Net Mortgage Rate on any such Specially Serviced Mortgage Loan to less than the lesser of (a) the original Net Mortgage Rate and (b) ___% per annum; or
(iii) provide for the deferral of interest unless (a) interest accrues thereon, generally, at the related Mortgage Rate and (b) the aggregate amount of such deferred interest does not exceed 10% of the unpaid principal balance of the Specially Serviced Mortgage Loan.
(c) Any provision of this Section 3.20 to the contrary notwithstanding, no fee described in this paragraph shall be collected by any Servicer or Special Servicer from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent or any modification, waiver or amendment of a Mortgage Loan (unless the amount thereof is specified in the related Mortgage Note) if the collection of such fee would cause such consent, modification, waiver or amendment to be a "significant modification" of the Mortgage Note within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) Notwithstanding anything to the contrary in this Agreement, the Special Servicer may agree to any waiver, modification or amendment of a Mortgage Loan that is not in default or as to which default is not reasonably foreseeable only to the extent that it would not be a "significant modification" of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b), provided that the proposed modification, amendment or waiver will not cause (x) either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or (y) either the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax under the REMIC Provisions. With respect to all modifications, amendments and waivers entered into by the Special Servicer pursuant to this Section 3.20(d), the Special Servicer shall provide the Trustee with an Opinion of Counsel (at the expense of the related fees and expenses are Mortgagor or such other Person requesting such modification or, if such expense cannot be collected from the related Mortgagor or such other Person, to be paid by the Borrower;
(viiServicer as a Servicing Advance) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’seffect that the contemplated, waiver, modification or amendment (i) will not be a "significant modification" of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b) and (ii) will not cause either clause (x) or (y) of this Section 3.20
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc), Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc), Pooling and Servicing Agreement (Jp Morgan Chase Commercial Mortgage Securities Corp)
Modifications, Waivers, Amendments and Consents. (a) The applicable Property Manager and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend the maturity of, defer forgive any Lease or forgive interest (including Default Interest) on and principal of, defer or forgive late Mortgage Loan payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Obligor on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, assignment of a Tenant’s interest in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) its Lease with respect to, or the sublease of all or a portion of, any Serviced Mortgaged Property, Lease or Mortgage Loan or Serviced Pari Passu Companion Loanit is required to service and administer hereunder, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained without the consent of the applicable Special Servicer (it being understood and agreed Issuers, the Indenture Trustee, any holder of Notes or any Controlling Party or Requisite Global Majority; provided ; that (Ai) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicerparty agreeing to any such amendment, would materially impair such amendment will not cause the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred Current Cashflow Coverage Ratio to be reduced to or below 1.30 or, if the Current Cashflow Coverage Ratio is already equal to or lower than 1.30, will not cause the Current Cashflow Coverage Ratio to be further reduced and (ii) in the reasonable judgment of the party agreeing to any such amendment, such amendment is in the best interest of the Noteholders and will not have an adverse effect on the Collateral Value of the related Mortgaged Property (in the case of any such amendment with respect to a Lease) or Mortgage Loan (in the case of any such amendment with respect to a Mortgage Loan); provided ; that any such amendment (x) in connection with a Delinquent Asset or Defaulted Asset, (y) that is required by the terms of the applicable Lease or Mortgage Loan or (z) with respect to which the Rating Condition is satisfied, shall not be subject to the foregoing restrictions set forth in (i) or (ii) above; (b) From time to time, subject to the Servicing Standard and upon satisfaction of the Rating Agency Notification Condition, the Property Manager or Special Servicer, a default as applicable, shall be entitled (on behalf of the Issuer and the Indenture Trustee) to release an immaterial portion of any Mortgaged Property that it is then administering from the lien of the Indenture and the Mortgage (and simultaneously release the Issuer’s interest in such portion of such Mortgaged Property) or consent to, or make, an immaterial modification with respect to payment on any Mortgaged Property that it is then administering; provided , that, such Mortgage Loan Property Manager or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer shall have certified that it reasonably believes that there is a significant risk such release or modification (both individually and collectively with any other similar releases or modifications with respect to such Mortgaged Property) will not materially adversely affect (i) the Appraised Value of such Mortgaged Property or (ii) the Noteholders’ or the holders’ of the Related Series Notes interests in such Mortgaged Property;
(c) The Property Manager and the Special Servicer each may, as a defaultcondition to its granting any request by an Obligor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Property Manager’s or Special Servicer’s, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Lease or Mortgage Loan and is permitted by the terms of such Lease or Mortgage Loan, require that such Obligor pay to it, as Additional Servicing Compensation, a reasonable or customary fee for the additional services performed in connection with such request, together with any related costs and expenses incurred by it; and
(d) All modifications, waivers, amendments and other actions entered into or taken in respect of a Lease or Mortgage Loan pursuant to this Section 3.19 shall be in writing. Each of the Property Manager and the Special Servicer shall notify the other such party and the Issuers and the Indenture Trustee, in either casewriting, such of any modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then74 US-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’sDOCS\ 96557504.7 102826315.7
Appears in 2 contracts
Samples: Property Management and Servicing Agreement (Spirit MTA REIT), Property Management and Servicing Agreement (Spirit Realty, L.P.)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan and in the case of 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 Master Servicer (in the case of a Performing Serviced Mortgage Loan or 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) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) (other than a Material Action with respect to a Performing Serviced Mortgage Loan or the Performing Serviced Pari Passu Companion Loan being processed by the applicable Special Servicer as provided in the final paragraph of this Section 3.20(a)) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five Business Days 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s’s permitting) any Borrower to add or substitute any real estate collateral for its Serviced Mortgage Loan unless the applicable Special Servicer shall have first (A) determined in its reasonable judgment, based upon a Phase I Environmental Assessment (and any additional environmental testing that the applicable Special Servicer deems necessary and prudent) conducted by an Independent Person who regularly conducts Phase I Environmental Assessments, at the expense of the related Borrower, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws or regulations and (B) received, at the expense of the related Borrower to the extent permitted to be charged by the holder of the Serviced Mortgage Loan under the related Mortgage Loan Documents, a Rating Agency Confirmation with respect to the addition or substitution of real estate collateral (and, in the case of any Serviced Loan Combination, from each Pari Passu Companion Rating Agency, if applicable); and
(viii) the applicable Special Servicer shall not release (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s releasing), including, without limitation, in connection with a substitution contemplated by clause (vii) above, any real property collateral securing an outstanding Serviced Mortgage Loan or Serviced Loan Combination, except as provided in Section 3.09(d), except as specifically required under the related Mortgage Loan Documents or except where a Mortgage Loan or Serviced Pari Passu Companion Loan (or, in the case of a Cross-Collateralized Group, where such entire Cross-Collateralized Group) is satisfied, or except in the case of a release where (A) the Rating Agencies (subject to Section 3.27) have been notified in writing, and (B) if the collateral to be released has an appraised value in excess of $3,000,000, such release is the subject of a Rating Agency Confirmation; provided that the limitations, conditions and restrictions set forth in clauses (i) through (viii) above shall not apply to any act or event (including, without limitation, a release, substitution or addition of collateral) in respect of any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that either occurs automatically, or results from the exercise of a unilateral option within the meaning of Treasury Regulations Section 1.1001-3(c)(3) by the related Borrower, in any event under the terms of such Mortgage Loan in effect on the Closing Date (or, in the case of a Replacement Mortgage Loan, on the related date of substitution) (provided, that in the case of any and all transactions involving a release of a lien on real property that secures a Serviced Mortgage Loan or Serviced Loan Combination, such a lien release shall be permitted only if the related Serviced Mortgage Loan or Serviced Loan Combination will continue to be “principally secured by real property” after the lien is released, or if it would not be, the release is permitted under IRS Revenue Procedure 2010-30, 2011-36 I.R.B. 316); and provided, further, that, notwithstanding clauses (i) through (vii) above, neither the applicable Master Servicer nor the applicable Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Borrower under a Serviced Mortgage Loan or Serviced Loan Combination if, in its reasonable judgment, such opposition would not ultimately prevent the confirmation of such plan or one substantially similar. Upon receiving a request for any matter described in this Section 3.20(a) that constitutes a Special Servicer Decision or a Material Action (without regard to the proviso in the
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2013-C16), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2013-C16)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend forgive or defer the maturity of, defer or forgive payment of interest (including including, without limitation, Default Interest and Excess Interest) on and principal of, defer or forgive late payment charges, Default Charges and Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor of, of any Serviced Mortgage Loan for which it is responsiblerequired to service and administer hereunder, and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Trustee or any Certificateholder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section 2.03(b) (with respect to a modification of the defeasance provisions under the Xxxxxxxx Square Office Building Loan within 90 days following the Closing Date), Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insuranceCharges), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(dclauses) (with respect to defeasances), and Section 3.20(f) (with respect to various routine mattersExcess Interest), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially it is required to service and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan administer hereunder that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the Master Servicer's good faith and reasonable judgment of the applicable Special Servicerjudgment, would materially impair the security for such Mortgage LoanLoan or reduce the likelihood of timely payment of amounts due thereon; however, unless the Special Servicer may agree to any modification, waiver or amendment of any term of, extend the maturity of or take any of the other acts referenced in this Section 3.20(a) with respect to, a Specially Serviced Mortgage Loan that would have any such effect, but only if a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer's reasonable and good faith judgment, a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, ) on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done performed at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage a Hyper-Amortization Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate in effect immediately prior to the such Anticipated Repayment Date)), than would liquidation; provided that ;
(ii) the Special Servicer may not, in connection with any particular extension, (A) any modification, extension, waiver or amendment of extend the payment terms maturity date of any related Serviced Mortgage Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth beyond June 18, 2028, (B) in the related case of a Mortgage Loan Documents, including secured by a Mortgage on the related Intercreditor Agreement, it being the intention that neither the Trust as holder applicable Mortgagor's leasehold interest in all or any material portion of the related Mortgaged Property (but not by a Mortgage on the fee interest in such Mortgaged Property or portion thereof), extend the maturity date of such Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain beyond a priority over any other with respect date that is ten years prior to any payment, which priority is not, as of the date expiration of the related Intercreditor Agreement, reflected Ground Lease or (C) in the related case of a Mortgage Loan Documentsthat is a Balloon Mortgage Loan, including extend the related Intercreditor Agreement; and maturity date beyond the amortization term thereof (B) without regard to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion LoanBalloon Payment);
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) or in Section 3.08 with respect to, any Mortgage Loan or Serviced Loan Combination that would (A) cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC under the Code or result in an Adverse the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day of any such REMIC Event with respect under the REMIC Provisions or (B) cause any Mortgage Loan to any REMIC Pool or an Adverse Grantor Trust Event with respect with cease to be a "qualified mortgage" within the Grantor Trust Pool meaning of Section 860G(a)(3) of the Code (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them the Master Servicer and the Special Servicer may rely on Opinions of Counsel in making such decisions);
(iv) neither the Master Servicer nor the Special Servicer shall permit any Mortgagor to add or substitute any collateral for an outstanding Mortgage Loan, which additional or substitute collateral constitutes real property, unless the Special Servicer shall have first determined in accordance with the Servicing Standard, based upon a Phase I Environmental Assessment (and such additional environmental testing as the Special Servicer deems necessary and appropriate) prepared within the 12-month period prior to such determination by an Independent Person who regularly conducts Phase I Environmental Assessments (and such additional environmental testing), at the expense of the Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws and/or regulations; and
(v) (A) in neither the event of a taking of Master Servicer nor the Special Servicer shall release any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by (including, without limitation, as part of a statesubstitution of collateral), political subdivision or authority thereofexcept in connection with a payment in full or, whether by condemnationsubject to the other provisions of this Section 3.20, similar legal proceeding or by agreement in anticipation a discounted payoff of such condemnation Mortgage Loan, or other similar legal proceedingexcept as provided in Section 3.09(d), or except where the applicable Rating Agencies have been notified in writing and (A) either (1) the use of the collateral to be released will not, in the Master Servicer Servicer's or the applicable Special Servicer's, as the case may be, shall apply good faith and reasonable judgment, materially and adversely affect the Condemnation Proceeds (Net Operating Income being generated by or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance use of the Serviced Mortgage Loanrelated Mortgaged Property, unless immediately after the release or (2) there is a corresponding principal paydown of such portion Mortgage Loan in an amount at least equal to, or a delivery of substitute collateral with an appraised value at least equal to, the appraised value of the real property collateralcollateral to be released and (B) the remaining Mortgaged Property and any substitute collateral is, in the applicable Master Servicer Servicer's or the applicable Special Servicer's, as the case may be, reasonably believes good faith and reasonable judgment, adequate security for the remaining Mortgage Loan; provided that (x) the Serviced limitations, conditions and restrictions set forth in clauses (i) through (v) above shall not apply to any modification of any term of any Mortgage Loan would remain “principally secured that either occurs automatically, or results from the exercise of a unilateral option by an interest in real property” the Mortgagor within the meaning of Treasury Regulations Section 1.860G-2(b)(7)(ii1.1001-3(c)(2)(ii), in any event under the terms of such Mortgage Loan in effect on the Closing Date, and (y) notwithstanding clauses (i) through (v) above, neither the Master Servicer nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Mortgagor if in their reasonable and good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(iiib) Neither the Master Servicer nor the Special Servicer shall have any liability to the Trust, the Certificateholders or any other Person if the Special Servicer's analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20(a) (with respect to Specially Serviced Mortgage Loans) is reasonably likely to produce a greater recovery to Certificateholders on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis in good faith by the Special Servicer and the Special Servicer has complied with the Servicing Standard in ascertaining the pertinent facts. Each such determination shall be evidenced by an Officer's Certificate to such effect to be delivered by the Special Servicer to the Trustee.
(c) Any payment of interest, which is deferred pursuant to Section 3.20(a), shall not, solely for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the Treasury Regulations (taking into account related Mortgage Loan, notwithstanding that the value terms of the real property continuing to secure such Serviced Mortgage Loan after any restoration of so permit; provided, however, that this provision is in no way intended to affect amounts actually due and owing from the related Mortgagor under such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 Mortgage Loan.
(the applicable d) The Master Servicer and the applicable Special Servicer each may, as a condition to its granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing (except with respect to any waiver pursuant to subsection (f) below), the granting of which is within the Master Servicer's or Special Servicer's, as the case may each rely be, discretion pursuant to the terms of the instruments evidencing or securing the related Mortgage Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to it, as additional servicing compensation, a reasonable and customary fee (not to exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for the additional services performed in connection with such request, together with any related costs and expenses incurred by it.
(e) All modifications, waivers, amendments and other actions entered into or taken in respect of the Mortgage Loans pursuant to the preceding subsections of this Section 3.20 shall be in writing. Each of the Master Servicer and the Special Servicer shall notify the other such party and the Trustee, in writing, of any modification, waiver, amendment or other action entered into or taken in respect of any Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall deliver to the Trustee or the related Custodian for deposit in the related Mortgage File (with a copy to the other such party), an original counterpart of the agreement relating to such modification, waiver, amendment or other action, promptly (and in any event within 10 Business Days) following the execution thereof. In addition, following the execution of any modification, waiver or amendment agreed to by the Special Servicer pursuant to Section 3.20(a) above, the Special Servicer shall deliver to the Master Servicer and the Trustee an Officer's Certificate setting forth in reasonable detail the basis of the determination made by it pursuant to clause (i) of Section 3.20(a).
(f) With respect to any Hyper-Amortization Loan after its Anticipated Repayment Date, the Master Servicer shall be permitted, in its discretion, to waive (such waiver to be in writing addressed to the related Mortgagor, with a copy to the Trustee) all or any accrued Excess Interest if, prior to the related maturity date, the related Mortgagor has requested the right to prepay the Mortgage Loan in full together with all other payments required by the Mortgage Loan in connection with such prepayment except for such accrued Excess Interest, provided that the Master Servicer's determination to waive the right to such accrued Excess Interest is reasonably likely to produce a greater payment to Certificateholders on Opinions a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders to be performed at the related Net Mortgage Rate in effect immediately prior to the related Anticipated Repayment Date) than a refusal to waive the right to such accrued Excess Interest. The Master Servicer will have no liability to the Trust, the Certificateholders or any other person so long as such determination is based on such criteria. In addition, within 90 days following the Closing Date, the Master Servicer shall forward to the Mortgagor under the Mortgage Loan identified on the Mortgage Loan Schedule by control number C033 and property name Minneapolis City Center, a letter of modification whereby the Master Servicer, on behalf of the Trustee as mortgagee of record, unilaterally and irrevocably agrees that the Excess Interest Rate for such Mortgage Loan will equal 2% (so that the Mortgage Rate for such Mortgage Loan following its Anticipated Repayment Date will equal 8.72% per annum).
(g) With respect to any Mortgage Loan which permits release of the related Mortgaged Property through the exercise a Defeasance Option, the Master Servicer shall, to the extent consistent with and permitted by the applicable Mortgage Loan documents, permit the exercise of such Defeasance Option on any Due Date occurring more than two years after the Startup Day (the "Release Date") only upon the satisfaction of the following conditions:
(i) No event of default shall exist under the related Mortgage Note;
(ii) The Mortgagor shall have paid on such Release Date (A) all interest accrued and unpaid on the principal balance of the related Mortgage Note to and including the Release Date; (B) all other sums, excluding scheduled interest or principal payments due under such Mortgage Note after the Release Date and (C) any costs and expenses incurred in connection with such release;
(iii) The Mortgagor shall have delivered Defeasance Collateral providing payments on or prior to all successive scheduled payment dates from the Release Date to the related Stated Maturity Date, and in an amount equal to or greater than the scheduled payments due on such dates under the Mortgage Loan;
(iv) The Mortgagor shall have delivered a security agreement granting the Trust a first priority security interest in the Defeasance Collateral;
(v) The Master Servicer shall have received an Opinion of Counsel in making such decisions, from the costs of related Mortgagor (which shall be covered byan expense of the related Mortgagor) to the effect that the Trust has a first priority security interest in the Defeasance Collateral and that the assignment thereof is valid and enforceable;
(vi) The Master Servicer shall have obtained at the related Mortgagor's expense a certificate from an Independent certified public accountant certifying that the Defeasance Collateral complies with the requirements of the related Mortgage Note;
(vii) If such Mortgage Loan so requires and provides for the related Mortgagor to pay the cost thereof, and reimbursable asthe Master Servicer shall have obtained an Opinion of Counsel from the related Mortgagor to the effect that such release would not cause any of REMIC I, Servicing AdvancesREMIC II or REMIC III to fail to qualify as a REMIC at any time that any Certificates are outstanding or cause a tax to be imposed on the Trust Fund under the REMIC Provisions;
(viii) and (B) in connection with (i) The Mortgagor shall have provided evidence to the release of any portion of a Mortgaged Property from Master Servicer demonstrating that the lien of the related Mortgage is being released to facilitate the disposition of the Mortgaged Property or another customary commercial transaction, and not as part of an arrangement to collateralize the Certificates with obligations that are not real estate mortgages; and
(other than ix) The Master Servicer shall have obtained written confirmation from each Rating Agency that the related Mortgagor's exercise of such Defeasance Option would not result in a qualification, downgrade or withdrawal of any rating then assigned by such Rating Agency to any Class of Certificates. In connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by related Mortgagor's exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Defeasance Option under any Defeasance Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to a new Person becoming the applicable Master Servicer’sMortgagor on the subject Defeasance Loan unless either such new Person is acquiring the Mortgaged Property that was the initial security for the Defeasance Loan or the Defeasance Loan is not, and was not at any time, a personal liability (without regard to customary exceptions) of the Mortgagor.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc), Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan and in the case of a Special Servicer Decision or a Material Action with respect to a Performing Serviced Mortgage Loan that is a Non-WFB Mortgage Loan or a related Performing Serviced Pari Passu Companion Loan) or the applicable Master Servicer (in the case of each Performing Serviced Mortgage Loan or 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 a related Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan or Trust Subordinate Companion Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan, Trust Subordinate Companion Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’swould
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C25), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2014-C24)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing provision of any related payment of principalHome Loan unless, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for Servicer's good faith judgment, such modification, waiver or amendment, amendment (yi) would minimize the applicable Master Servicer’s written recommendations and analysisloss that might otherwise be experienced with respect to such Home Loan, 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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion any FHA Loan, consent to complies with the applicable requirements of Title I or is required by Title I and such FHA Loan has experienced a payment default or a payment default is reasonably foreseeable by the Master Servicer’s agreeing to. The Master Servicer shall agree to subordinate the position of the security interest in the Property which secures any FHA Loan upon the Master Servicer's receipt of written approval of HUD to such subordination or written certification by the Servicer that such proposed subordination complies with current published HUD requirements and provided such subordination (i) would permit the Obligor to refinance a senior lien to take advantage of a lower interest rate or (ii) would permit the Obligor to extend the term of the senior lien. Notwithstanding the foregoing, at no time shall the aggregate of the Principal Balances of Home Loans modified, waived or amended without the prior or subsequent approval of the Securities Insurer exceed 3% of the aggregate of the Initial Pool Principal Balance and no modification or amendment of a Home Loan shall involve the execution by the Obligor of a new Debt Instrument or, with respect to any Mortgage Loan, of a new Mortgage. At the request of the Master Servicer, the Securities Insurer, at its discretion, may approve an increase in or waiver of the percentage referred to in the previous sentence, such approval not to be unreasonably withheld.
(b) The Master Servicer shall notify the Indenture Trustee and the Securities Insurer of any modification, waiver or amendment of any term ofprovision of any Home Loan and the date thereof, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent and shall deliver to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security Indenture Trustee for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth deposit in the related Mortgage Home Loan DocumentsFile, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder an original counterpart of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect agreement relating to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term ofamendment, or take any of promptly following the other acts referenced execution thereof. Such notice shall state that the conditions contained in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s4.10 have been satisfied.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Mego Financial Corp), Sale and Servicing Agreement (Mego Mortgage Corp)
Modifications, Waivers, Amendments and Consents. (a) The applicable Property Manager and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend the maturity of, defer forgive any Lease or forgive interest (including Default Interest) on and principal of, defer or forgive late Mortgage Loan payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Obligor on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, assignment of a Tenant’s interest in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) its Lease with respect to, or the sublease of all or a portion of, any Serviced Mortgaged Property, Lease or Mortgage Loan or Serviced Pari Passu Companion Loanit is required to service and administer hereunder, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained without the consent of the applicable Special Servicer (it being understood and agreed Issuers, the Indenture Trustee, any holder of Notes or any Controlling Party or Requisite Global Majority; provided; that (Ai) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicerparty agreeing to any such amendment, would materially impair such amendment will not cause the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred Current Cashflow Coverage Ratio to be reduced to or below 1.30 or, if the Current Cashflow Coverage Ratio is already equal to or lower than 1.30, will not cause the Current Cashflow Coverage Ratio to be further reduced and (ii) in the reasonable judgment of the party agreeing to any such amendment, such amendment is in the best interest of the Noteholders and will not have an adverse effect on the Collateral Value of the related Mortgaged Property (in the case of any such amendment with respect to a Lease) or Mortgage Loan (in the case of any such amendment with respect to a Mortgage Loan); provided; that any such amendment (x) in connection with a Delinquent Asset or Defaulted Asset, (y) that is required by the terms of the applicable Lease or Mortgage Loan or (z) with respect to which the Rating Condition is satisfied, shall not be subject to the foregoing restrictions set forth in (i) or (ii) above; US-DOCS\96557504.296557504.7
(b) From time to time, subject to the Servicing Standard and upon satisfaction of the Rating Agency Notification Condition, the Property Manager or Special Servicer, a default as applicable, shall be entitled (on behalf of the Issuer and the Indenture Trustee) to release an immaterial portion of any Mortgaged Property that it is then administering from the lien of the Indenture and the Mortgage (and simultaneously release the Issuer’s interest in such portion of such Mortgaged Property) or consent to, or make, an immaterial modification with respect to payment on any Mortgaged Property that it is then administering; provided, that, such Mortgage Loan Property Manager or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer shall have certified that it reasonably believes that there is a significant risk such release or modification (both individually and collectively with any other similar releases or modifications with respect to such Mortgaged Property) will not materially adversely affect (i) the Appraised Value of such Mortgaged Property or (ii) the Noteholders’ or the holders’ of the Related Series Notes interests in such Mortgaged Property;
(c) The Property Manager and the Special Servicer each may, as a defaultcondition to its granting any request by an Obligor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Property Manager’s or Special Servicer’s, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Lease or Mortgage Loan and is permitted by the terms of such Lease or Mortgage Loan, require that such Obligor pay to it, as Additional Servicing Compensation, a reasonable or customary fee for the additional services performed in connection with such request, together with any related costs and expenses incurred by it; and
(d) All modifications, waivers, amendments and other actions entered into or taken in respect of a Lease or Mortgage Loan pursuant to this Section 3.19 shall be in writing. Each of the Property Manager and the Special Servicer shall notify the other such party and the Issuers and the Indenture Trustee, in either casewriting, of any modification, waiver, amendment or other action entered into or taken in respect of any Lease or Mortgage Loan pursuant to this Section 3.19 and the date thereof, and shall deliver to the Custodian for deposit in the related Lease File or Loan File an original counterpart of the agreements relating to such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders action, promptly (and, and in any event within ten (10) Business Days) following the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority execution thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s.
Appears in 2 contracts
Samples: Property Management and Servicing Agreement, Property Management and Servicing Agreement (Spirit MTA REIT)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing provision of any related payment of principalLoan unless, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for Servicer's good faith judgment, such modification, waiver or amendment, amendment (yi) would minimize the applicable Master Servicer’s written recommendations and analysisloss that might otherwise be experienced with respect to such Loan, 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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion any FHA Loan, consent to complies with the applicable requirements of Title I or is required by Title I and such FHA Loan has experienced a payment default or a payment default is reasonably foreseeable by the Master Servicer’s agreeing to. The Master Servicer shall agree to subordinate the position of the security interest in the Property which secures any FHA Loan upon the Master Servicer's receipt of written approval of HUD to such subordination or written certification by the Servicer that such proposed subordination complies with current published HUD requirements and provided such subordination (i) would permit the Obligor to refinance a senior lien to take advantage of a lower interest rate or (ii) would permit the Obligor to extend the term of the senior lien. Notwithstanding the foregoing, at no time shall the aggregate of the Principal Balances of Loans modified, waived or amended without the prior or subsequent approval of the Certificate Insurer exceed 3% of the aggregate of the Initial Loan Group I Principal Balance and the Initial Loan Group II Principal Balance and no modification or amendment of a Loan shall involve the execution by the Obligor of a new Note or, with respect to any Mortgage Loan, of a new Mortgage. At the request of the Master Servicer, the Certificate Insurer, at its discretion, may approve an increase in or waiver of the percentage referred to in the previous sentence, such approval not to be unreasonably withheld.
(b) The Master Servicer shall notify the Trustee and the Certificate Insurer of any modification, waiver or amendment of any term ofprovision of any Loan and the date thereof, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent and shall deliver to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security Trustee for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth deposit in the related Mortgage Loan DocumentsFile, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder an original counterpart of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect agreement relating to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term ofamendment, or take any of promptly following the other acts referenced execution thereof. Such notice shall state that the conditions contained in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s3.10 have been satisfied.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Mego Financial Corp), Pooling and Servicing Agreement (Mego Mortgage Corp)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or the Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.24 and/or 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f3.20(e) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five Business Days after the time period provided for in the related Intercreditor Agreementdays) 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), ,
as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any the related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five two years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-then current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee);
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s permitting) any Borrower to add or substitute any real estate collateral for its Serviced Mortgage Loan unless the Special Servicer shall have first (A) determined in its reasonable judgment, based upon a Phase I Environmental Assessment (and any additional environmental testing that the Special Servicer deems necessary and prudent) conducted by an Independent Person who regularly conducts Phase I Environmental Assessments, at the expense of the related Borrower, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws or regulations and (B) received, at the expense of the related Borrower to the extent permitted to be charged by the holder of the Serviced Mortgage Loan under the related Mortgage Loan Documents, a Rating Agency Confirmation with respect to the addition or substitution of real estate collateral (and, in the case of any Serviced Loan Combination, from each Pari Passu Companion Rating Agency, if applicable); and
(viii) the Special Servicer shall not release (or, in the case of a Performing Serviced Mortgage Loan, consent to the Master Servicer’s releasing), including, without limitation, in connection with a substitution contemplated by clause (vii) above, any real property collateral securing an outstanding Serviced Mortgage Loan or Serviced Loan Combination, except as provided in Section 3.09(d), except as specifically required under the related Mortgage Loan Documents or except where a Mortgage Loan or Serviced Pari Passu Companion Loan (or, in the case of a Cross-Collateralized Group, where such entire Cross-Collateralized Group) is satisfied, or except in the case of a release where (A) the Rating Agencies (subject to Section 3.27) have been notified in writing, and (B) if the collateral to be released has an appraised value in excess of $3,000,000, such release is the subject of a Rating Agency Confirmation; provided that the limitations, conditions and restrictions set forth in clauses (i) through (viii) above shall not apply to any act or event (including, without limitation, a release, substitution or addition of collateral) in respect of any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that either occurs automatically, or results from the exercise of a unilateral option within the meaning of Treasury Regulations Section 1.1001-3(c)(3) by the related Borrower, in any event under the terms of such Mortgage Loan in effect on the Closing Date (or, in the case of a Replacement Mortgage Loan, on the related date of substitution) (provided, however, that in the case of any and all transactions involving a release of a lien on real property that secures a Serviced Mortgage Loan or Serviced Loan Combination, such a lien release shall be permitted only if the related Serviced Mortgage Loan or Serviced Loan Combination will continue to be “principally secured by real property” after the lien is released, or if it would not be, the release is permitted under IRS Revenue Procedure 2010-30, 2011-36 I.R.B. 316); and provided, further, that, notwithstanding clauses (i) through (vii) above, neither the Master Servicer nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Borrower under a Serviced Mortgage Loan or Serviced Loan Combination if, in its reasonable judgment, such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(b) If any payment of interest on a Serviced Mortgage Loan is deferred pursuant to Section 3.20(a), then such payment of interest shall not, for purposes of calculating monthly distributions and reporting information to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit or that such interest may actually be capitalized; provided, however, that this sentence shall not limit the rights of the Master Servicer or the Special Servicer on behalf of the Trust to enforce any obligations of the related Borrower under such Mortgage Loan.
(c) Each of the Master Servicer and the Special Servicer may, as a condition to its granting any request by a Borrower under a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Master Servicer’s or the Special Servicer’s, as the case may be, discretion pursuant to the terms of the related Mortgage Loan Documents and is permitted by the terms of this Agreement, require that such Borrower pay to it a reasonable or customary fee for the additional services performed in connection with such request, together with any related costs and expenses incurred by it; provided that (A) the charging of such fees would not otherwise constitute a “significant modification” of the subject Mortgage Loan or Serviced Pari Passu Companion Loan pursuant to Treasury Regulations Section 1.860G-2(b); and (B) the right of the Special Servicer shall be limited as set forth in the definition of “Modification Fees”.
(d) All modifications, amendments, material waivers and other material actions entered into or taken in respect of the Serviced Mortgage Loans or Serviced Pari Passu Companion Loan pursuant to this Section 3.20 (other than waivers of Default Charges), and all material consents, shall be in writing. Each of the Special Servicer and the Master Servicer shall notify the other such party, each Rating Agency (subject to Section 3.27), the Certificate Administrator, the Trustee, the Subordinate Class Representative, the Majority Subordinate Certificateholder and, if the Mortgage Loan is included in the Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s), in writing, of any material modification, waiver, amendment or other action entered into or taken thereby in respect of any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan pursuant to this Section 3.20 (other than waivers of Default Charges for which the consent of the Special Servicer is required under
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8), Pooling and Servicing Agreement (WFRBS Commercial Mortgage Trust 2012-C8)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in and, to the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or limited extent permitted below, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) each may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest and Additional Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges Premiums on, defer the payment of interest on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower Mortgagor on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, required to service and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)administer hereunder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section 3.02 (with respect to Default Charges and Post-ARD Additional InterestSections 2.03(a), Section 3.07 (insurance3.02, 3.08, 3.19(h), Section 3.08 (with respect to due-on-sale 3.19(i) and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained without the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) the applicable Special Servicer shall not unreasonably withhold any such consent, (C) 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 3.26, as applicable), and (CD) if any such consent has not been expressly denied within fifteen (15) 10 Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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 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);
(ii) other than as provided in Sections 3.02, 3.08 3.02 and 3.20(e)3.08, the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer's reasonable, good faith judgment, would materially impair the security for such Mortgage LoanLoan or reduce the likelihood of timely payment of amounts due thereon, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer's reasonable, good faith judgment, a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment DateRate), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall not extend (or consent to the Servicer's extending) the date on which any Balloon Payment is scheduled to be due on any Specially Serviced Mortgage Loan to a date beyond the earlier earliest of (A) five the third anniversary of such Mortgage Loan's Stated Maturity Date, (B) two years prior to the Rated Final Distribution Date and Date, (BC) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s Mortgagor's leasehold interest (and not a sub-leasehold interest) in the related Mortgaged Property, 20 ten years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-then current term of the related Ground Lease and (D) if such Mortgage Loan is secured by a Mortgage solely or Space Lease primarily on the related Mortgagor's sub-leasehold interest in the related Mortgaged Property ten years prior to the then current term of the related Ground Sub-Lease; and, furthermore, the Special Servicer shall not grant (plus or consent to the Servicer's granting) any unilateral options such extension unless (A) the Special Servicer's recovery determination contemplated by clause (ii) above is supported by an Appraisal performed within the preceding 12-month period and (B) the Mortgagor agrees to extenddeliver to the Special Servicer, the Trustee, the Controlling Class Representative and, if not already included among the foregoing, any Majority Controlling Class Certificateholder, quarterly operating statements with respect to the related Mortgaged Property (the Special Servicer (or, if applicable, the Servicer at the direction of the Special Servicer) to request that such statements be audited, provided that the Special Servicer may waive such condition relating to such statements being audited, in its sole discretion);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions)Pool;
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or consent to the Servicer's permitting) any Mortgagor to add or substitute any collateral for its Mortgage Loan unless the Special Servicer shall have first (A) determined in its reasonable, good faith judgment, based upon a Phase I Environmental Assessment (and any additional environmental testing that the Special Servicer deems necessary and prudent) conducted by an Independent Person who regularly conducts Phase I Environmental Assessments, at the expense of the Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws and/or regulations and (B) received confirmation from each Rating Agency that such addition or substitution of collateral will not result in an Adverse Rating Event with respect to any Class of Rated Certificates; and
(vi) the Special Servicer shall not release (or not consent to the Servicer's releasing), including in connection with a substitution contemplated by clause (v) above, any collateral securing an outstanding Mortgage Loan except as provided in Section 3.09(d), except where a Mortgage Loan (or, in the case of a Performing Serviced Cross-Collateralized Group, where such entire Cross- Collateralized Group) is satisfied and except in the case of a release where (A) either (1) the use of the collateral to be released will not, in the Special Servicer's good faith and reasonable judgment, materially and adversely affect the Net Operating Income being generated by or the use of the related Mortgaged Property, or (2) there is a corresponding principal paydown of such Mortgage Loan in an amount at least equal to the appraised value of the collateral to be released (or substitute collateral with an appraised value at least equal to that of the collateral to be released, is delivered), (B) the remaining Mortgaged Property (together with any substitute collateral) is, in the Special Servicer's good faith and reasonable judgment, adequate security for the remaining Mortgage Loan and (C) such release would not, in and of itself, result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by each Rating Agency); provided that (x) the limitations, conditions and restrictions set forth in clauses (i) through (vi) above shall not apply to any of the acts referenced in this Section 3.20(a) with respect to any Mortgage Loan that is required under the terms of such Mortgage Loan in effect on the Closing Date (or, in the case of a Replacement Mortgage Loan, consent on the related date of substitution) or that is solely within the control of the related Mortgagor, and (y) notwithstanding clauses (i) through (vi) above, neither the Servicer nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Mortgagor if in its reasonable, good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(b) The Special Servicer shall have no liability to the applicable Master Trust, the Certificateholders or any other Person if the Special Servicer’s's analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20
(a) is reasonably likely to produce a greater recovery to Certificateholders on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis in good faith by the Special Servicer and in accordance with the Servicing Standard.
(c) Any payment of interest, which is deferred pursuant to Section 3.20(a), shall not, for purposes of calculating monthly distributions to Certificateholders and reporting of information, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit or that such interest may actually be capitalized; provided, however, that this sentence shall not limit the rights of the Servicer or the Special Servicer on behalf of the Trust to enforce any obligations of the related Mortgagor under such Mortgage Loan.
(d) Each of the Servicer and the Special Servicer may, as a condition to its granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Servicer's or the Special Servicer's, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Mortgage Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to it a reasonable or customary fee (which shall in no event exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for the additional services performed in connection with such request, together with any related costs and expenses incurred by it. All such fees collected by the Servicer and/or the Special Servicer shall be allocable between such parties, as Additional Servicing Compensation and Additional Special Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions entered into or taken in respect of the Mortgage Loans pursuant to this Section 3.20 shall be in writing. Each of the Special Servicer and the Servicer shall notify the other such party and the Trustee, in writing, of any modification, waiver, amendment or other action entered into or taken thereby in respect of any Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall deliver to the Trustee or the related Custodian for deposit in the related Mortgage File (with a copy to the other such party, an original counterpart of the agreement relating to such modification, waiver, amendment or other action, promptly (and in any event within 10 Business Days) following the execution thereof. In addition, following the execution of any modification, waiver or amendment agreed to by the Special Servicer pursuant to Section 3.20(a) above, the Special Servicer shall deliver to the Servicer, the Trustee and the Rating Agencies an Officer's Certificate certifying that all of the requirements of Section 3.20(a) have been met and setting forth in reasonable detail the basis of the determination made by it pursuant to Section 3.20(a)(ii); provided that, if such modification, waiver or amendment involves an extension of the maturity of any Mortgage Loan, such Officer's Certificate shall be delivered to the Servicer, the Trustee and the Rating Agencies before the modification, waiver or amendment is agreed to.
(f) With respect to any Designated ARD Loan after its Anticipated Repayment Date, the Servicer (with respect to Mortgage Loans other than Specially Serviced Mortgage Loans) and the Special Servicer (with respect to Specially Serviced Mortgage Loans) shall be permitted, in its discretion, to waive (such waiver to be in writing addressed to the related Mortgagor, with a copy to the Trustee) all or any portion of accrued Additional Interest if, prior to the related maturity date, the related Mortgagor has requested the right to prepay the Mortgage Loan in full together with all payments required by the Mortgage Loan in connection with such prepayment except for such accrued Additional Interest, provided that the Servicer's or Special Servicer's, as the case may be, determination to waive the right to such accrued Additional Interest is reasonably likely to produce a greater payment to Certificateholders on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders to be performed at the related Net Mortgage Rate) than a refusal to waive the right to such Additional Interest. Neither the Servicer nor the Special Servicer will have any liability to the Trust, the Certificateholders or any other person for any such determination made in accordance with the Servicing Standard. This subsection shall not be construed to limit the authority of the Special Servicer to waive the payment of Additional Interest pursuant to Section 3.20(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Commercial Mort Corp Comm Mort Pass THR Cer Ser 1998-Cg1)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges capitalize interest on, permit the release, addition or substitution of collateral Mortgaged Property securing, and/or and permit the release, addition or substitution release of the Borrower on or any guarantor of, of any Serviced Mortgage Loan for which it is responsiblerequired to service and administer hereunder, and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including Owner Trust, the lease reviews and lease consents related thereto)Owner Trustee, the Indenture Trustee or any holder of Bonds or Owner Trust Certificates, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section 3.02 3.08 and in subsection (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(dc) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)below, the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially it is required to service and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan administer hereunder that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the Master Servicer's reasonable judgment of the applicable Special Servicergood faith and judgment, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or reduce the applicable likelihood of timely payment of amounts due thereon; the Special Servicer reasonably believes that there is a significant risk of such a defaultmay, andhowever, in either case, such modification, waiver, amendment or other action is reasonably likely agree to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any a Specially Serviced Mortgage Loan or Serviced Loan Combination that would result have any such effect, but only if a material default on such Mortgage Loan has occurred or, in the Special Servicer's reasonable good faith judgment, a default in respect of payment on such Mortgage Loan is reasonably foreseeable, and such modification, waiver, amendment or other action is reasonably likely to produce a greater recovery to Owner Trust on a present value basis (the relevant discounting of anticipated collections that will be remitted by the Master Servicer to be done at the related Net Mortgage Rate), than would liquidation;
(ii) the Special Servicer may not extend the date on which any Balloon Payment is scheduled to be due on any Specially Serviced Mortgage Loan more than three times and, in the case of any such extension, for more than a one year period and in no event more than one year beyond its Stated Maturity Date; and, furthermore, the Special Servicer may not grant any such extension unless (A) the Special Servicer's recovery determination contemplated by the immediately preceding clause (i) is supported by an Adverse REMIC Event Appraisal performed within the preceding 12-month period and (B) the Borrower agrees to deliver to the Special Servicer, the Indenture Trustee and the Issuer quarterly operating statements with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool related Mortgaged Property (the applicable Master Servicer and the applicable Special Servicer shall not to request that such statements be liable for decisions made under this subsection which were made audited, provided that the Special Servicer may waive such condition relating to such statements being audited, in good faith and each of them may rely on Opinions of Counsel in making such decisionsits sole discretion);
(viii) (A) in neither the event of a taking of Master Servicer nor the Special Servicer shall permit any portion of Borrower to add or substitute any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, unless the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have first determined in accordance with the Condemnation Proceeds Servicing Standard, based upon a Phase I Environmental Assessment prepared within the past twelve months (and any additional environmental testing that the Special Servicer, deems necessary and prudent) prepared by an Independent Person who regularly conducts Phase I Environmental Assessments, at the expense of the Borrower, that such additional or other similar award) substitute collateral property is in compliance with applicable environmental laws and the net proceeds from the receipt of any insurance regulations and that there are no circumstances or tort settlement conditions present with respect to such real property new collateral relating to pay down the principal balance use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws and/or regulations, and such addition or substitution of collateral will not result in the downgrade, qualification or withdrawal of the Serviced rating then assigned by either Rating Agency to any Bonds (as confirmed in writing by each Rating Agency);
(iv) neither the Master Servicer nor the Special Servicer shall release or substitute for any Mortgaged Property securing an outstanding Mortgage LoanLoan except as provided in Section 3.09(c) and except where a Mortgage Loan is satisfied and except in the case of a release where (A) the use of the collateral to be released will not, unless immediately after in the release Special Servicer's reasonable good faith judgment, materially and adversely affect the Net Operating Income being generated by or the use of the related Mortgaged Property, (B) there is a corresponding principal paydown of such portion Mortgage Loan in an amount at least equal to the appraised value of the real property collateral to be released (or substitute collateral with an appraised value at least equal to that of the collateral to be released, is delivered), (C) the remaining Mortgaged Property (together with any substitute collateral) is, in the applicable Special Servicer's reasonable good faith judgment, adequate security for the remaining Mortgage Loan and (D) such release or substitution would not result in the downgrade, qualification or withdrawal of the rating then assigned by either Rating Agency to any Bonds (as confirmed in writing by each Rating Agency);
(v) neither the Master Servicer nor the Special Servicer shall extend the maturity date of any Mortgage Loan secured by the Borrower's interest in a ground lease to a date which is less than ten years prior to the termination date of such ground lease (including any extension options set forth therein); and
(vi) neither the Master Servicer nor the Special Servicer shall extend the maturity date of any Mortgage Loan to date which is less than two years prior to August 2030. provided that (x) the limitations, conditions and restrictions set forth in clauses (i) through (vi) above shall not apply to any modification of any term of any Mortgage Loan that is required under the terms of such Mortgage Loan in effect on the Closing Date or that is solely within the control of the related Borrower, and (y) notwithstanding clauses (i) through (iv) above, neither the Master Servicer nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Borrower if in its reasonable good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(b) The Master Servicer and the Special Servicer shall have no liability to the Owner Trust, to the Owner Trustee or the Indenture Trustee, to the holders of the Bonds or the Owner Trust Certificates or to any other Person if its analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20(a) would not materially impair the security for such Mortgage Loan or reduce the likelihood of timely payment of amounts due thereon, or that such modification, waiver, amendment or other action is reasonably likely to produce a greater recovery to the Owner Trust on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis in good faith by the Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an .
(c) Any payment of interest in real property” within the meaning of which is deferred pursuant to Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property3.20(a), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Propertiesnot, for purposes of REMIC qualification hereof, including calculating monthly remittances by the Master Servicer, be added to the unpaid principal balance of the related Mortgage Loan, then notwithstanding that the terms of such calculation Mortgage Loan so permit or that such interest may actually be capitalized.
(d) The Master Servicer and the Special Servicer each may, as a condition to its granting any request by a Borrower for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Master Servicer or Special Servicer's, as the case may be, discretion pursuant to the terms of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, instruments evidencing or securing the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid is permitted by the Borrower;
(vii) the applicable Special Servicer shall not permit (orterms of this Agreement, in the case of require that such Borrower pay to it, as additional servicing compensation, a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’sreasonable or customary fee 66
Appears in 1 contract
Samples: Servicing Agreement (Imh Assets Corp Impac CMB Trust 1998 C1 Col Mor Bond 1998 C1)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) each may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges capitalize interest on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor of, of any Mortgage Loan or any Serviced Mortgage Companion Loan for which it is responsiblerequired to service and administer hereunder, and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Trustee or any Certificateholder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Sections 3.02 and 3.08, but subject to Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters3.21(i), the applicable Master Servicer (in such capacity) shall not agree to any modification, 154 waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.21(a) with respect to, any Mortgage Loan or Serviced Companion Loan that would (A) affect the amount or timing of any related payment of principal, interest or other amount payable thereunder, (B) affect the obligation of the related Mortgagor to pay any Prepayment Premium or permit a Principal Prepayment during any period when the terms of the Mortgage Loan or Serviced Companion Loan prohibit the making of Principal Prepayments or, (C) in the Master Servicer's good faith and reasonable judgment, materially impair the security for such Mortgage Loan or Serviced Companion Loan or reduce the likelihood of timely payment of amounts due thereon; provided, the Master Servicer, with the consent of the Majority Certificateholder of the Controlling Class, shall have the authority to extend the due date of a Balloon Payment for up to one year (but for no more than two (2) such one-year extensions); provided, the Special Servicer (in such capacity) may agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a3.21(a) with respect to, any a Specially Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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 have any such consenteffect, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (orbut only if, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer's reasonable and good faith judgment, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan or Serviced Companion Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, or a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in with respect to the case of a Serviced Loan CombinationWhole Loans, the Certificateholders and the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, Holders on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date)basis, than would liquidation; provided that ;
(Aii) any modification, extension, waiver or amendment of such action taken by the payment terms of any related Serviced Loan Combination Special Servicer shall be structured in accompanied by an Officer's Certificate to such effect and to which is attached the present value calculation which establishes the basis for such determination, a manner so as to copy of which shall be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) delivered to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior Trustee for delivery to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion LoanRating Agencies;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on Stated Maturity Date of any Mortgage Loan to a date or Serviced Companion Loan beyond the earlier of (A) five date that is two years prior to the Rated Final Distribution Date and (B) if such and, in the case of any Mortgage Loan or Serviced Companion Loan that is secured solely by a Mortgage solely Ground Lease, the Master Servicer or primarily on the related Borrower’s leasehold interest in Special Servicer, as the related Mortgaged Propertycase may be, 20 years (or, to the extent consistent with the Servicing Standard, giving shall give due consideration to the remaining term of the related such Ground Lease or Space Lease, ten years) prior to extending the end Stated Maturity Date of the then-current term of the related Ground Lease Mortgage Loan or Space Lease (plus any unilateral options to extend)Serviced Companion Loan;
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a3.21(a) or Section 3.20(h) with respect to, any Mortgage Loan or Serviced Companion Loan Combination that would (A) cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC under the Code or (subject to Section 10.01(f)) result in an Adverse the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day of any such REMIC Event with respect under the REMIC Provisions or (B) cause any Mortgage Loan or Serviced Companion Loan to any REMIC Pool or an Adverse Grantor Trust Event with respect with cease to be a "qualified mortgage" within the Grantor Trust Pool meaning of Section 860G(a)(3) of the Code (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them the Master Servicer and the Special Servicer may rely on Opinions opinions of Counsel counsel in making such decisions);; 155
(v) (A) in neither the event of a taking of Master Servicer nor the Special Servicer shall permit any portion of Mortgagor to add or substitute any real property collateral securing for an outstanding Serviced Mortgage Loan by a stateor Serviced Companion Loan, political subdivision or authority thereofwhich collateral constitutes real property, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, unless the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have first determined, in its reasonable and good faith judgment, based upon an Environmental Assessment performed within the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect twelve months prior to such real property to pay down determination (and such additional environmental testing as the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured deems necessary and appropriate) prepared by an interest in real property” within Independent Person who regularly conducts Environmental Assessments (and such additional environmental testing), at the meaning of Section 1.860G-2(b)(7)(ii) or (iii) expense of the Treasury Regulations (taking into account Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property)use, management or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release disposal of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or (ii) the taking of remediation would be required under any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trusteeenvironmental laws and/or regulations;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modificationshall, waiver with respect to a Mortgage Loan or amendment of any term of any Performing Serviced Companion Loan, other than a Specially Serviced Mortgage Loan unless all related fees release or substitute any collateral securing an outstanding Mortgage Loan or Serviced Companion Loan except as provided in Sections 3.08 and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s3.09
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) each may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges capitalize interest on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor ofof any Mortgage Loan or any Serviced Companion Loan or Serviced B Note it is required to service and administer hereunder, without the consent of the Trustee, any Certificateholder or holder of a Serviced Mortgage Companion Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Serviced B Note, subject, however, to Sections 3.083.29, 3.243.31, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to 3.32 and 3.33 and each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Sections 3.02 and 3.08, but subject to Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters3.21(j), the applicable Master Servicer (in such capacity) shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a3.21(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, Loan or Serviced B Note that would (xA) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loanthereunder, (yB) affect the obligation of the related Mortgagor to pay any Prepayment Premium or permit a Principal Prepayment during any period when the terms of the Mortgage Loan or Serviced Companion Loan or Serviced B Note prohibit the making of Principal Prepayments or (C) in the Master Servicer's good faith and reasonable judgment, materially and adversely affect impair the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or Serviced B Note or reduce the likelihood of timely payment of amounts due thereon; provided, the Master Servicer, with the consent of the Majority Certificateholder of the Controlling Class (zsubject to the limitations contained in Section 3.24(g)) constitute a Material Action, unless (solely or in the case of the First National Bank Center Loan during a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained Class FNB Control Period, the consent of the applicable Class FNB Representative (subject to the limitations contained in Section 6.07(a)), shall have the authority to extend the due date of a Balloon Payment for up to one year (but for no more than two such one-year extensions) on any Mortgage Loan; provided, the Special Servicer (it being understood and agreed that (Ain such capacity) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a3.21(a)(i) with respect to, any a Specially Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of have any related payment of principalsuch effect, interest or other amount payable thereunder orbut only if, in the reasonable judgment of the applicable Special Servicer's reasonable and good faith judgment, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan, Serviced Companion Loan or Serviced B Note has occurred or, in the reasonable judgment of the applicable Special Servicer, or a default with in respect to of payment on such Mortgage Loan, Serviced Companion Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date B Note is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in with respect to the case of a Serviced Loan CombinationWhole Loans, the Certificateholders and, to the extent applicable, any related Serviced Pari Passu Companion Loan Holder(s))Holders or Serviced B Note Holder, as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date)basis, than would liquidation; provided that ;
(Aii) any modification, extension, waiver or amendment of such action taken by the payment terms of any related Serviced Loan Combination Special Servicer shall be structured in accompanied by an Officer's Certificate to such effect and to which is attached the present value calculation which establishes the basis for such determination, a manner so as to copy of which shall be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) delivered to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior Trustee for delivery to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion LoanRating Agencies;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on Stated Maturity Date of any Mortgage Loan, Serviced Companion Loan to a date or Serviced B Note beyond the earlier of (A) date that is five years prior to the Rated Final Distribution Date and (B) if such and, in the case of any Mortgage Loan, Serviced Companion Loan or Serviced B Note that is secured solely by a Mortgage solely Ground Lease, the Master Servicer or primarily on the related Borrower’s leasehold interest in Special Servicer, as the related Mortgaged Propertycase may be, 20 years (or, to the extent consistent with the Servicing Standard, giving shall give due consideration to the remaining term of the related such Ground Lease or Space Lease, ten years) prior to extending the end Stated Maturity Date of the then-current term of the related Ground Lease Mortgage Loan, Serviced Companion Loan or Space Lease (plus any unilateral options to extend)Serviced B Note;
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a3.21(a) or Section 3.20(h) with respect to, any Mortgage Loan, Serviced Companion Loan or Serviced Loan Combination B Note that would (A) cause REMIC L, REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC under the Code or (subject to Section 10.01(f)) result in an Adverse the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day of any such REMIC Event with respect under the REMIC Provisions or (B) cause any Mortgage Loan, Serviced Companion Loan or Serviced B Note to any REMIC Pool or an Adverse Grantor Trust Event with respect with cease to be a "qualified mortgage" within the Grantor Trust Pool meaning of Section 860G(a)(3) of the Code (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them may the Master Servicer and the Special Servicer shall rely on Opinions opinions of Counsel counsel in making such decisions);
(v) (A) in neither the event of a taking of Master Servicer nor the Special Servicer shall permit any portion of Mortgagor to add or substitute any real property collateral securing for an outstanding Mortgage Loan, Serviced Mortgage Companion Loan by a stateor Serviced B Note, political subdivision or authority thereofwhich collateral constitutes real property, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, unless the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have first determined, in its reasonable and good faith judgment, based upon an Environmental Assessment performed within the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect twelve months prior to such real property to pay down determination (and such additional environmental testing as the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured deems necessary and appropriate) prepared by an interest in real property” within Independent Person who regularly conducts Environmental Assessments (and such additional environmental testing), at the meaning of Section 1.860G-2(b)(7)(ii) or (iii) expense of the Treasury Regulations (taking into account Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property)use, management or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release disposal of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or (ii) the taking of remediation would be required under any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trusteeenvironmental laws and/or regulations;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modificationshall, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of with respect to a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’sServiced Companion Loan or Serviced B Note, other than a 195
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GMAC Commercial Mortgage Securities, Inc. Series 2006-C1 Trust)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Post-ARD Additional Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges Consideration on, defer the payment of interest on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower Borrowers on or any guarantor of, any Serviced the Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for grant any consent on under the part of the mortgagee (including the lease reviews and lease consents related thereto)Mortgage Loan Documents, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, Section 3.24 and, in the case of each Mortgage Loan in a Serviced Loan Combinationfurther, to the rights of third parties set forth in the related Intercreditor Agreement, and, further subject to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect provided below and to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect the extent that the Lender is able to due-on-sale and due-on-encumbrance clauses and transfers exercise discretion under the applicable provisions of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)the Mortgage Loan Documents, the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced the Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder (other than amounts that would constitute Additional Servicing Compensation), except that, subject to the conditions set forth in the Loan Agreement, the Servicer may enter into a Loan Agreement Supplement relating to a Mortgage Loan Increase or the addition of Additional Sites or Additional Borrower Sites, and the Servicer may defer or forgive the payment of interest (including Post-ARD Additional Interest) on and principal of the Mortgage Loan and reduce the amount of the Monthly Payment Amount, including by way of a reduction in any of the Component Rates, if (but only if) (w) the Borrowers are in material default in respect of the Mortgage Loan or, in the reasonable judgment sole discretion of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, exercised in the reasonable judgment of the applicable Special Servicergood faith, a default with in respect to of a payment on such the Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or (x) the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to the Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, ) on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that , (y) the modification, waiver, amendment or other action would not result in any Adverse Tax Status Event (as evidenced by an Opinion of Counsel, the cost of which shall be paid as an Additional Trust Fund Expense) and (z) the Servicer has obtained the consent of (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as Controlling Class Representative to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; extent required under Section 3.24 and (B) to if such amendment would result in the extent consistent with the Servicing Standard, no waiver, reduction or deferral forgiveness of any particular amounts due on payment of principal or interest or significantly accelerate or defer payment of principal or interest (other than the related Mortgage Loan shall be effected prior to forgiveness of principal in an amount not exceeding the waiver, reduction or deferral Class Principal Balance of the entire corresponding item Controlling Class and all Classes subordinate to such Class net of accrued and unpaid Accrued Certificate Interest, Post-ARD Additional Interest, Value Reduction Accrued Interest and Deferred Post-ARD Interest payable in respect of such Controlling Class), the related Serviced Pari Passu Companion consent of the Certificateholders representing not less than 90% of the Voting Rights allocated to the affected Classes (voting together as if they were a single Class) and 66 2/3% of the Voting Rights allocated to all Classes (voting together as if they were a single Class);
(ii) in no event shall the Servicer extend the Anticipated Repayment Date for any Component of the Mortgage Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with that the Servicing Standard, giving due consideration Lender is able to exercise discretion under the remaining term applicable provisions of the related Ground Lease or Space LeaseMortgage Loan Documents, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall not make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any the Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event Tax Status Event;
(iv) the Servicer shall not permit the Borrowers to add or substitute any collateral for the Mortgage Loan (other than in accordance with respect the Mortgage Loan Documents); and
(v) the Servicer shall not release any material collateral securing the Mortgage Loan, except as provided in Section 3.09(c) or except in accordance with the terms of the Mortgage Loan Documents or upon satisfaction of the Mortgage Loan; provided that (x) the limitations, conditions and restrictions set forth in clauses (i) through (v) above shall not apply to any REMIC Pool act or an Adverse Grantor Trust Event with event (including, without limitation, a release, substitution or addition of collateral) in respect with to of the Grantor Trust Pool Mortgage Loan that either occurs automatically by its terms, or results from the exercise of a unilateral option by a Borrower within the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event required under the terms of the Mortgage Loan in effect on the Closing Date or that is solely within the control of the Borrowers, and (y) notwithstanding clauses (i) through (v) above, the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Borrower if in its good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(b) The Servicer shall have no liability to the Trust, the Certificateholders or any other Person if the Servicer’s analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20(a) is reasonably likely to produce a greater recovery to Certificateholders (as collective whole) on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in a reasonable basis by the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel has acted reasonably and complied with the Servicing Standard in making ascertaining the pertinent facts. Each such decisions, the costs of which determination shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property evidenced by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, an Officer’s Certificate to calculate (or approve the calculation such effect to be delivered by the related Borrower ofServicer to the Trustee.
(c) the loan-to-value ratio Any payment of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Propertiesinterest, which is deferred pursuant to Section 3.20(a), shall not, for purposes of REMIC qualification calculating monthly distributions and reporting information to Certificateholders, be added to the Stated Principal Balance of the related Mortgage Loan, then such calculation notwithstanding that the terms of the value Mortgage Loan so permit or that such interest may actually be capitalized; provided, however, that this sentence shall not limit the rights of collateral will be solely based the Servicer on behalf of the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted Trust to enforce any obligations of the Borrowers under the applicable REMIC rules Mortgage Loan.
(d) The Servicer may, as evidenced a condition to its granting any request by an Opinion a Borrower for consent, assumption, modification, waiver or indulgence or any other matter or thing, the granting of Counsel provided which is within the Servicer’s discretion pursuant to the Trustee;terms of the instruments evidencing or securing the Mortgage Loan and is permitted by the terms of this Agreement, require that such Borrower pay to it a reasonable or customary fee for the additional services performed in connection with such request, together with any related processing fee, application fee and costs and expenses incurred by it. All such fees collected by the Servicer shall constitute Additional Servicing Compensation as provided in Section 3.11.
(vie) subject All modifications, waivers, amendments and other material actions entered into or taken in respect of the Mortgage Loan pursuant to applicable lawthis Section 3.20 shall be in writing. The Servicer shall notify each Rating Agency, the related Trustee and the Controlling Class Representative, in writing, of any modification, waiver, amendment or other action entered into or taken thereby in respect of the Mortgage Loan Documents pursuant to this Section 3.20 and the Servicing Standarddate thereof, neither and shall deliver to the applicable Master Servicer nor Trustee or the applicable Special Servicer shall permit related Custodian for deposit in the Mortgage File, an original counterpart of the agreement relating to such modification, waiver, amendment or other action, promptly (and in any event within ten (10) Business Days) following the execution thereof. In addition, following the execution of any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid agreed to by the Borrower;
(viiServicer pursuant to Section 3.20(a) above, the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent deliver to the applicable Master Servicer’sTrustee and the Rating Agencies an Officer’s Certificate certifying that all of the requirements of Section 3.20(a) have been met and setting forth in reasonable detail the basis of the determination made by it pursuant to Section 3.20(a)(i).
Appears in 1 contract
Samples: Trust and Servicing Agreement (American Tower Corp /Ma/)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default default interest, Post-ARD Additional Interest and Value Reduction Accrued Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges Consideration on, defer the payment of interest on, or upon the Servicer’s confirmation that the conditions precedent set forth in this Section 3.20(a) or in the Mortgage Loan Documents have been satisfied, such confirmation not to be unreasonably withheld, conditioned or delayed, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower Borrowers on or any guarantor of, any Serviced the Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for grant any consent on under the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan CombinationDocuments, to the rights of third parties set forth in the related Intercreditor Agreement, and, further subject to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect provided below and to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect the extent that the Lender is able to due-on-sale and due-on-encumbrance clauses and transfers exercise discretion under the applicable provisions of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)the Mortgage Loan Documents, the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced the Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder (other than amounts that would constitute Additional Servicing Compensation), except that, subject to the conditions set forth in the Loan Agreement, the Servicer may enter into a Loan Agreement Supplement relating to a Mortgage Loan Increase or the addition of Additional Sites or Additional Borrower Sites, and the Servicer may defer or forgive the payment of interest (including default interest, Post-ARD Additional Interest and Value Reduction Accrued Interest) on and principal of the Mortgage Loan and reduce the amount of the Monthly Payment Amount, including by way of a reduction in any of the Component Rates, if (but only if) (w) the Borrowers are in material default in respect of the Mortgage Loan or, in the reasonable judgment sole discretion of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, exercised in the reasonable judgment of the applicable Special Servicergood faith, a default with in respect to of a payment on such the Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or (x) the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders the Securityholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, ) on a present value basis than would liquidation, (y) the relevant discounting modification, waiver, amendment or other action would not result in any Adverse Tax Status Event (as evidenced by an Opinion of anticipated collections that will Counsel, the cost of which shall be distributable paid as an Additional Trust Fund Expense) and (z) the Servicer has obtained the consent of the Securityholders representing not less than 90% of the Voting Rights allocated to Certificateholders the affected Classes (and, voting together as if they were a single Class) and 66 2⁄3% of the Voting Rights allocated to all Classes (voting together as if they were a single Class) if such amendment would result in the case forgiveness of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)any payment of principal or interest or significantly defer payment of principal or interest;
(ii) to be done at a rate determined by the applicable Special Servicer but in no event less than shall the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to Servicer extend the Anticipated Repayment Date), than would liquidation; provided that (A) Date for any modification, extension, waiver or amendment Component of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with that the Servicing Standard, giving due consideration Lender is able to exercise discretion under the remaining term applicable provisions of the related Ground Lease or Space LeaseMortgage Loan Documents, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall not make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any the Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event Tax Status Event;
(iv) the Servicer shall not permit the Borrowers to add or substitute any collateral for the Mortgage Loan other than in accordance with respect the Mortgage Loan Documents; and
(v) the Servicer shall not release any material collateral securing the Mortgage Loan, except as provided in Section 3.09(c) or except in accordance with the terms of the Mortgage Loan Documents or upon satisfaction of the Mortgage Loan; provided that (x) the limitations, conditions and restrictions set forth in clauses (i) through (v) above shall not apply to any REMIC Pool act or an Adverse Grantor Trust Event with event (including, without limitation, a release, substitution or addition of collateral) in respect with to of the Grantor Trust Pool Mortgage Loan that either occurs automatically by its terms, or results from the exercise of a unilateral option by a Borrower within the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event required under the terms of the Mortgage Loan in effect on the Closing Date or that is solely within the control of the Borrowers, and (y) notwithstanding clauses (i) through (v) above, the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Borrower if in its good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(b) The Servicer shall have no liability to the Trust, the Securityholders or any other Person if the Servicer’s analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20(a) is reasonably likely to produce a greater recovery to Securityholders (as collective whole) on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in a reasonable basis by the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel has acted reasonably and complied with the Servicing Standard in making ascertaining the pertinent facts. Each such decisions, the costs of which determination shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property evidenced by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, an Officer’s Certificate to calculate (or approve the calculation such effect to be delivered by the related Borrower ofServicer to the Trustee.
(c) the loan-to-value ratio Any payment of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Propertiesinterest, which is deferred pursuant to Section 3.20(a), shall not, for purposes of REMIC qualification calculating monthly distributions and reporting information to Securityholders, be added to the Stated Principal Balance of the related Mortgage Loan, then such calculation notwithstanding that the terms of the value Mortgage Loan so permit or that such interest may actually be capitalized; provided, however, that this sentence shall not limit the rights of collateral will be solely based the Servicer on behalf of the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted Trust to enforce any obligations of the Borrowers under the applicable REMIC rules Mortgage Loan.
(d) The Servicer may, as evidenced a condition to its providing confirmation that the conditions precedent have been satisfied in connection with any request by an Opinion a Borrower for consent, assumption, modification, waiver or indulgence or any other matter or thing, which confirmation shall not be unreasonably withheld, conditioned or delayed, require that such Borrower pay to it for the additional services performed in connection with such request, any related processing fee, application fee and out-of-pocket costs and expenses incurred by it. All such fees collected by the Servicer shall constitute Additional Servicing Compensation as provided in Section 3.11.
(e) All modifications, waivers, amendments and other material actions entered into or taken in respect of Counsel provided the Mortgage Loan pursuant to this Section 3.20 shall be in writing. The Servicer shall notify each Rating Agency and the Trustee, in writing, of any modification, waiver, amendment or other action entered into or taken thereby in respect of the Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall deliver to the Trustee;
(vi) subject to applicable law, Trustee or the related Custodian for deposit in the Mortgage Loan Documents File, an original counterpart of the agreement relating to such modification, waiver, amendment or other action, promptly (and in any event within ten (10) Business Days) following the Servicing Standardexecution thereof. In addition, neither following the applicable Master Servicer nor the applicable Special Servicer shall permit execution of any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid agreed to by the Borrower;
(viiServicer pursuant to Section 3.20(a) above, the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent deliver to the applicable Master Servicer’sTrustee and the Rating Agencies an Officer’s Certificate certifying that all of the requirements of Section 3.20(a) have been met and setting forth in reasonable detail the basis of the determination made by it pursuant to Section 3.20(a)(i).
Appears in 1 contract
Samples: Trust and Servicing Agreement (American Tower Corp /Ma/)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a as to Specially Serviced Mortgage LoanLoans) or and, to the applicable limited extent permitted below, the Master Servicer (in the case of a as to Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion LoanLoans) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend forgive or defer the maturity of, defer or forgive payment of interest (including including, without limitation, Default Interest and Additional Interest) on and principal of, defer or forgive late payment charges, Default Charges and Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower on or any guarantor of, of any Serviced such Mortgage Loan for which it is responsiblerequired to service and administer hereunder, and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Trustee or any Certificateholder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insuranceCharges), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(dclauses) (with respect to defeasances), and Section 3.20(f) (with respect to various routine mattersAdditional Interest), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, to any Serviced Performing Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained without the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) the applicable Special Servicer (for no additional compensation) shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24 and/or 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen ten (1510) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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 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);
(ii) other than as provided in Sections 3.02, 3.08 3.02 and 3.20(e)3.08, the applicable Special Servicer shall not not, as applicable, agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's agreeing to) to any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) 's taking any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in 's good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’sreasonable judgment,
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Com Mor Pas THR Cer Se 1999-C1)
Modifications, Waivers, Amendments and Consents. (a) The applicable Each Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is solely as to a Specially Serviced Mortgage LoanLoan for which it acts as Special Servicer) or the applicable each Master Servicer (in the case of solely as to a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loanfor which it acts as Master Servicer) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest and Post-ARD Additional Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Loan, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, 3.08 and 3.24 (and, in the case of each Mortgage any A Loan in a Serviced Loan Combinationor B Loan, subject to the rights terms of third parties set forth in the related A/B Intercreditor Agreement, ) and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section 3.02 (with respect to Default Charges and Post-ARD Additional InterestSections 2.03(b), Section 3.07 (insurance)3.02, Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers)3.08, Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine mattersand 3.20(g), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely Loan or affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material ActionLoan, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable such Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (y) the applicable such Master Servicer’s written 's recommendations and analysis, and (z) with all information reasonably available to the applicable such Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) ten Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s 's receipt from the applicable such 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 such Master Servicer in order to make an informed decisiondecision (or, if the applicable Special Servicer did not request any information, within 15 Business Days from such notice), such consent shall be deemed to have been granted);
(ii) other than as provided in Sections 3.02, 3.08 3.02 and 3.20(e)3.08, the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable reasonable, good faith judgment of the applicable such Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable such Special Servicer, a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, ) on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the related Net Mortgage Rate), than would liquidation;
(iii) the applicable Special Servicer but in no event less than the related Net Mortgage Rate shall not extend (or, in the case of an ARD a Performing Mortgage Loan after its Anticipated Repayment DateLoan, at the related Net Mortgage Rate immediately prior consent to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend Servicer's extending) the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier earliest of (A) five the fifth anniversary of such Mortgage Loan's Stated Maturity Date, (B) three years prior to the Rated Final Distribution Date and for any Class of Rated Certificates, (BC) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s 's leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten 10 years) prior to the end of the then-then current term of the related Ground Lease or Space Lease (plus any unilateral options to extend), and (D) if such Mortgage Loan is covered by an environmental insurance policy, two years prior to the expiration of the term of such policy unless the applicable Special Servicer shall have first determined in its reasonable judgment, based upon a Phase I Environmental Assessment (and any additional environmental testing that the Special Servicer deems necessary and prudent) conducted by an Independent Person who regularly conducts Phase I Environmental Assessments, and at the expense of the Borrower, that there are no circumstances or conditions present at the related Mortgaged Property for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws or regulations;
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any either Trust REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions)Trust;
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(viivi) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s's permitting) any Borrower to add or substitute any real estate collateral for its Mortgage Loan unless the applicable Special Servicer shall have first (A) determined in its reasonable judgment, based upon a Phase I Environmental Assessment (and any additional environmental testing that such Special Servicer deems necessary and prudent) conducted by an Independent Person who regularly conducts Phase I Environmental Assessments, at the expense of the related Borrower, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws or regulations and (B) received, at the expense of the related Borrower, written confirmation from each Rating Agency that such addition or substitution of collateral will not, in and of itself, result in an Adverse Rating Event with respect to any Class of Rated Certificates; and
(vii) the applicable Special Servicer shall not release (or, in the case of a Performing Mortgage Loan, consent to the applicable Master Servicer's releasing), including in connection with a substitution contemplated by clause (vi) above, any real property collateral securing an outstanding Mortgage Loan, except as provided in Section 3.09(d), or except where a Mortgage Loan (or, in the case of a Cross-Collateralized Group, where such entire Cross-Collateralized Group) is satisfied, or except in the case of a release where (A) either (1) the use of the collateral to be released will not, in the reasonable judgment of such Special Servicer, materially and adversely affect the net operating income being generated by or the use of the related Mortgaged Property, or (2) there is a corresponding principal pay down of such Mortgage Loan in an amount at least equal to the appraised value of the collateral to be released (or substitute real estate collateral with an appraised value at least equal to that of the collateral to be released, is delivered), (B) with respect to Performing Loans, the remaining Mortgaged Property (together with any substitute collateral) is, in such Special Servicer's reasonable judgment, adequate security for the remaining Mortgage Loan and (C) with respect to Performing Loans, such release would not, in and of itself, result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by each Rating Agency); provided that the limitations, conditions and restrictions set forth in clauses (i) through (vii) above shall not apply to any act or event (including, without limitation, a release, substitution or addition of collateral) in respect of any Mortgage Loan that either occurs automatically, or results from the exercise of a unilateral option by the related Borrower within the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage Loan in effect on the Closing Date (or, in the case of a Replacement Mortgage Loan, on the related date of substitution); and provided, further, that, notwithstanding clauses (i) through (vii) above, neither the applicable Master Servicer nor the applicable Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Borrower if, in its reasonable judgment, such opposition would not ultimately prevent the confirmation of such plan or one substantially similar; and provided, further, that, notwithstanding clause (vii) above, neither the applicable Master Servicer nor the applicable Special Servicer shall be required to obtain any confirmation of the Certificate ratings from the Rating Agencies in order to grant easements that do not materially affect the use or value of a Mortgaged Property or the Borrower's ability to make any payments with respect to the related Mortgage Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CSFB Mortgage Sec Corp Comm Mort Pass THR Cert Ser 2003-Cnp1)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a as to Specially Serviced Mortgage LoanLoans) or and, to the applicable limited extent permitted below, the Master Servicer (in the case of a as to Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion LoanLoans) each may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest and Additional Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, required to service and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)administer hereunder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, 3.08 and 3.24 and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section 3.02 (with respect to Default Charges and Post-ARD Additional InterestSections 2.03(a), Section 3.07 (insurance)3.02, Section 3.08 (with respect to due-on-sale 3.08, 3.19(h) and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters3.20(g), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained without the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) the applicable Special Servicer (for no additional compensation) shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24 and/or 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) ten Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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 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);
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e3.20(f), the applicable Special Servicer shall not not, in the case of any Specially Serviced Mortgage Loan, agree to (or, in the case of a any Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's agreeing to) any modification, waiver or amendment of any term of, or or, in the case of any Specially Serviced Mortgage Loan, take (or, in the case of a any Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer's reasonable, good faith judgment, would materially impair the security for such Mortgage LoanLoan or reduce the likelihood of timely payment of amounts due thereon, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer's reasonable, good faith judgment, a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, ) on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders to be done at the related Mortgage Rate), than would liquidation;
(andiii) the Special Servicer shall not, in the case of a any Specially Serviced Loan CombinationMortgage Loan, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate extend (or, in the case of an ARD any Performing Mortgage Loan after its Anticipated Repayment DateLoan, at the related Net Mortgage Rate immediately prior consent to the Anticipated Repayment Date), than would liquidation; provided that (AMaster Servicer's extending) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier earliest of (A) five the fifth anniversary of such Mortgage Loan's Stated Maturity Date, (B) two years prior to the Rated Final Distribution Date and (BC) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s 's leasehold interest in the related Mortgaged Property, 20 ten years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-then current term of the related Ground Lease or Space Lease (plus any unilateral options to extend); and, furthermore, the Special Servicer shall not, in the case of any Specially Serviced Mortgage Loan, grant (or, in the case of any Performing Mortgage Loan, consent to the Master Servicer's granting) any such extension unless the related Borrower agrees to deliver to the Special Servicer, the Trustee and the Controlling Class Representative quarterly operating statements with respect to the related Mortgaged Property (the Special Servicer (or, if applicable, the Master Servicer at the direction of the Special Servicer) to request that such statements be audited, provided that the Special Servicer may waive such condition relating to such statements being audited, in its sole discretion);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the either Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions)Pool;
(v) (A) the Special Servicer shall not, in the event of a taking case of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Specially Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a any Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s's permitting) any Borrower to add or substitute any real estate collateral for its Mortgage Loan unless the Special Servicer shall have first (A) determined in its reasonable, good faith judgment, based upon a Phase I Environmental Assessment (and any additional environmental testing that the Special Servicer deems necessary and prudent) conducted by an Independent Person who regularly conducts Phase I Environmental Assessments, at the expense of the Borrower, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws or regulations and (B) received written confirmation from each Rating Agency that such addition or substitution of collateral will not, in and of itself, result in an Adverse Rating Event with respect to any Class of Rated Certificates; and
(vi) the Special Servicer shall not, in the case of any Specially Serviced Mortgage Loan, release (or, in the case of any Performing Mortgage Loan, consent to the Master Servicer's releasing), including in connection with a substitution contemplated by clause (v) above, any collateral securing an outstanding Mortgage Loan except as provided in Section 3.09(d), or except as provided in Section 3.20(g), or except where a Mortgage Loan (or, in the case of a Cross-Collateralized Group, where such entire Cross-Collateralized Group) is satisfied, or except in the case of a release where (A) either (1) the use of the collateral to be released will not, in the Special Servicer's good faith and reasonable judgment, materially and adversely affect the Net Operating Income being generated by or the use of the related Mortgaged Property, or (2) there is a corresponding principal pay down of such Mortgage Loan in an amount at least equal to the appraised value of the collateral to be released (or substitute collateral with an appraised value at least equal to that of the collateral to be released, is delivered), (B) the remaining Mortgaged Property (together with any substitute collateral) is, in the Special Servicer's good faith and reasonable judgment, adequate security for the remaining Mortgage Loan and (C) such release would not, in and of itself, result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by each Rating Agency); provided that (x) the limitations, conditions and restrictions set forth in clauses (i) through (vi) above shall not apply to any of the acts referenced in this Section 3.20(a) with respect to any Mortgage Loan that is required under the terms of such Mortgage Loan in effect on the Closing Date (or, in the case of a Replacement Mortgage Loan, on the related date of substitution) or that is solely within the control of the related Borrower, and (y) notwithstanding clauses (i) through (vi) above, neither the Master Servicer nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Borrower if in its reasonable, good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(b) The Special Servicer shall have no liability to the Trust, the Certificateholders or any other Person if the Special Servicer's analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20
(a) is reasonably likely to produce a greater recovery to Certificateholders on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis in good faith by the Special Servicer and in accordance with the Servicing Standard.
(c) Any payment of interest, which is deferred pursuant to Section 3.20(a), shall not, for purposes of calculating monthly distributions and reporting information to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit or that such interest may actually be capitalized; provided, however, that this sentence shall not limit the rights of the Master Servicer or the Special Servicer on behalf of the Trust to enforce any obligations of the related Borrower under such Mortgage Loan.
(d) Each of the Master Servicer and the Special Servicer may, as a condition to its granting any request by a Borrower for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Master Servicer's or the Special Servicer's, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Mortgage Loan and is permitted by the terms of this Agreement, require that such Borrower pay to it a reasonable or customary fee (which shall in no event exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for the additional services performed in connection with such request, together with any related costs and expenses incurred by it. All such fees collected by the Master Servicer and/or the Special Servicer shall be allocable between such parties, as Additional Master Servicing Compensation and Additional Special Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions entered into or taken in respect of the Mortgage Loans pursuant to this Section 3.20 shall be in writing. Each of the Special Servicer and the Master Servicer shall notify the other such party, each Rating Agency and the Trustee, in writing, of any modification, waiver, amendment or other action entered into or taken thereby in respect of any Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall deliver to the Trustee or the related Custodian for deposit in the related Mortgage File (with a copy to the other such party), an original counterpart of the agreement relating to such modification, waiver, amendment or other action, promptly (and in any event within ten Business Days) following the execution thereof. In addition, following the execution of any modification, waiver or amendment agreed to by the Special Servicer pursuant to Section 3.20(a) above, the Special Servicer shall deliver to the Master Servicer, the Trustee and the Rating Agencies an Officer's Certificate certifying that all of the requirements of Section 3.20(a) have been met and setting forth in reasonable detail the basis of the determination made by it pursuant to Section 3.20(a)(ii); provided that, if such modification, waiver or amendment involves an extension of the maturity of any Mortgage Loan, such Officer's Certificate shall be delivered to the Master Servicer, the Trustee and the Rating Agencies before the modification, waiver or amendment is agreed to.
(f) With respect to any Designated ARD Loan after its Anticipated Repayment Date, the Master Servicer shall be permitted, in its discretion, to waive (such waiver to be in writing addressed to the related Borrower, with a copy to the Trustee) all or any portion of the accrued Additional Interest in respect of such ARD Loan if, prior to the related maturity date, the related Borrower has requested the right to prepay such ARD Loan in full together with all payments required by the related Mortgage Loan documents in connection with such prepayment except for such accrued Additional Interest, provided that (i) the Master Servicer has obtained the consent of the Special Servicer (such consent to be given or withheld in accordance with the Servicing Standard) and (ii) the Master Servicer has determined, in its reasonable, good faith judgment, that the waiver of the Trust's right to receive such accrued Additional Interest is in accordance with the Servicing Standard.
(g) The Master Servicer shall not be required to seek the consent of the Special Servicer or any Certificateholder or obtain any confirmation of the Certificate ratings from the Rating Agencies in order to approve the following modifications, waivers or amendments of the Mortgage Loans: (i) waivers of minor covenant defaults (other than financial covenants), including late financial statements; (ii) releases of non-material parcels of a Mortgaged Property (provided that releases as to which the related Mortgage Loan documents expressly require the mortgagee thereunder to make such releases upon the satisfaction of certain conditions shall be made as required by the Mortgage Loan documents); and (iii) grants of easements that do not materially affect the use or value of a Mortgaged Property or the Borrower's ability to make any payments with respect to the related Mortgage Loan; provided that any such modification, waiver or amendment (w) would not in any way affect a payment term of the Certificates, (x) would not constitute a "significant modification" of such Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to either Grantor Trust Pool, (y) agreeing to such modification, waiver or amendment would be consistent with the Servicing Standard, and (z) agreeing to such modification, waiver or amendment shall not violate the terms, provisions or limitations of this Agreement or any other document contemplated hereby.
(h) The Master Servicer shall not terminate or consent to the termination any property manager with respect to any Mortgaged Property without the consent of the Special Servicer (it being understood and agreed that (A) the Master Servicer shall promptly provide the Special Servicer with all information that the Special Servicer may reasonably request and which information is in the possession of the Master Servicer, in order to withhold or grant any such consent, (B) the Special Servicer (for no additional compensation) shall decide whether to withhold or grant such consent in accordance with the Servicing Standard and (C) if any such consent has not been expressly denied within ten Business Days of the Special Servicer's receipt from the Master Servicer of all information reasonably requested thereby in order to make an informed decision, such consent shall be deemed to have been granted).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Greenwich Capital Commercial Funding Corp)
Modifications, Waivers, Amendments and Consents. (a1) Subject to the provisions of Section 2.11(a), this Section 2.11(f) and Section 4.3(b), the Servicer shall have the right, but not the obligation, to agree to any immaterial modification, waiver, or amendment, of any term of any Loan, or to grant any immaterial consent or approval or to release or discharge any immaterial Collateral with respect to any Loan without the consent of any person. The applicable Special Servicer (shall notify the Credit Enhancer of any such amendments and deliver to the Credit Enhancer an executed copy of such amendments. All modifications, waivers, amendments, consents, approvals, releases, and discharges, shall be in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (writing and shall be consistent with the servicing standards described in Section 2.11(a).
(2) The Servicer shall notify the Indenture Trustee, the Issuer, the Servicing Standard) agree to Advisor, the Custodian, the Rating Agencies and the Credit Enhancer of any material modification, waiver waiver, amendment, consent, approval, release or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (discharge with respect to Default Charges any Loan and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (the date thereof and shall deliver to the Custodian for deposit with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any related Loan Documents an original counterpart of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available agreement relating to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment amendment, consent, approval, release or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (anddischarge, in promptly following the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;execution thereof.
(iii3) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special The Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit allow any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan, without the consent of the Credit Enhancer (unless such modification, waiver or amendment is immaterial, in which case no such consent is required). Notwithstanding the foregoing, except as expressly provided herein or in connection with any repurchase or substitution of a Loan unless all related fees and expenses are paid by in accordance with the Borrower;
(vii) Indenture, the applicable Special Servicer shall not permit (orrelease or waive the right to collect the stated, non-default rate of interest on, the unpaid balance of, or any Loan Yield Maintenance Amount payable in the case respect of a Performing Serviced Mortgage any Loan, consent to the applicable Master Servicer’s.
Appears in 1 contract
Samples: Servicing and Custodial Agreement (Atherton Capital Inc)
Modifications, Waivers, Amendments and Consents. (a) The Subject to Sections 3.20(b) through 3.20(m) below and further subject to Sections 3.08(b) and 6.11 and further subject to any applicable Special Servicer (in intercreditor agreement or similar agreement, the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (to the extent provided in Section 3.02(a) and Section 3.20(i) below) and the case Special Servicer may, on behalf of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) Trustee, agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible(including, and respond subject to or approve Borrower requests for consent on the part of the mortgagee (including Section 3.20(i), the lease reviews and lease consents related thereto) without the consent of the Trustee or any Certificateholder.
(b) All modifications, waivers or amendments of any Mortgage Loan (including, subject to Section 3.20(i), subjectthe lease reviews and lease consents related thereto) shall be in writing and shall be considered and effected in accordance with the Servicing Standard; provided, however, to Sections 3.08, 3.24, 3.26, and/or 3.28that neither the Master Servicer nor the Special Servicer, as applicable, andshall make or permit or consent to, in the case as applicable, any modification, waiver or amendment of each any term of any Mortgage Loan in not otherwise permitted by this Section 3.20 that would constitute a Serviced “significant modification” of such Mortgage Loan Combination, to within the rights meaning of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:Treasury Regulations Section 1.860G-2(b).
(ic) other than Except as expressly set forth provided in 3.20(d) and the last sentence of Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters3.02(a), the applicable Master Servicer Special Servicer, on behalf of the Trustee, shall not agree or consent to any modification, waiver or amendment of any term of, or take of any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would would:
(xi) affect the amount or timing of any related payment of principal, interest or other amount (including Prepayment Premiums or Yield Maintenance Charges, but excluding Penalty Interest and amounts payable under such Mortgage Loan, (yas additional servicing compensation) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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 grantedpayable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a Prepayment Premium or Yield Maintenance Charge or permit a Principal Prepayment during any period in which the related Mortgage Note prohibits Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or pursuant to Section 3.09(d), result in a release of the lien of the Mortgage on any material portion of the related Mortgaged Property without a corresponding Principal Prepayment in an amount not less than the fair market value (as determined by an appraisal by an Independent Appraiser delivered to the Special Servicer at the expense of the related Mortgagor and upon which the Special Servicer may conclusively rely) of the property to be released other than as provided in Sections 3.02, 3.08 and 3.20(e), connection with a taking of all or part of the applicable Special Servicer shall related Mortgaged Property or REO Property for not agree less than fair market value by exercise of the power of eminent domain or condemnation or casualty or hazard losses with respect to such Mortgaged Property or REO Property;
(iv) if such Mortgage Loan is equal to or in excess of 5% of the then aggregate current principal balances of all Mortgage Loans or $35,000,000 (or, with respect to Xxxxx’x, $25,000,000), or is one of the ten largest Mortgage Loans by Stated Principal Balance as of such date, permit the transfer or transfers of (A) the related Mortgaged Property or any interest therein or (B) equity interests in the case borrower or any equity owner of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (orborrower that would result, in the case aggregate during the term of the related Mortgage Loan, in a Performing Serviced transfer greater than 49% of the total interest in the borrower and/or any equity owner of the borrower or a transfer of voting control in the borrower or an equity owner of the borrower without the prior written confirmation from each Rating Agency that such changes will not result in the qualification, downgrade or withdrawal to the ratings then assigned to the Certificates;
(v) allow any additional lien on the related Mortgaged Property if such Mortgage Loan is equal to or Performing Serviced Pari Passu Companion in excess of 2% of the then aggregate current principal balances of the Mortgage Loans or $[20,000,000], is one of the ten largest Mortgage Loans by Stated Principal Balance as of such date, or with respect to [S&P] only, has an aggregate Loan-to-Value Ratio that is equal to or greater than 85% or has an aggregate Debt Service Coverage Ratio that is less than 1.20x, consent without the prior written confirmation from each Rating Agency (as applicable) that such change will not result in the qualification, downgrade or withdrawal or the ratings then assigned to the applicable Master Servicer’s takingCertificates; or
(vi) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable reasonable, good faith judgment of the applicable Special Servicer, would otherwise materially impair the security for such Mortgage Loan or reduce the likelihood of timely payment of amounts due thereon.
(d) Notwithstanding Section 3.20(c), but subject to the third paragraph of this Section 3.20(d), and the rights of the Controlling Class Representative and the rights (if any) of a Companion Holder (other than the holder of the [__________] Companion Loan) pursuant to the related Intercreditor Agreement, the Special Servicer may (i) reduce the amounts owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued interest or any Prepayment Premium or Yield Maintenance Charge, (ii) reduce the amount of the Periodic Payment on any Specially Serviced Mortgage Loan, unless including by way of a material default on such reduction in the related Mortgage Rate, (iii) forbear in the enforcement of any right granted under any Mortgage Note or Mortgage relating to a Specially Serviced Mortgage Loan, (iv) extend the maturity date of any Specially Serviced Mortgage Loan has occurred (and the Master Servicer may extend the maturity date of Mortgage Loans with an original maturity of five years or less with the approval of the Controlling Class for up to two (2) six-month extensions), or (v) accept a Principal Prepayment on any Specially Serviced Mortgage Loan during any Lockout Period; provided that (A) the related Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or, in the reasonable reasonable, good faith judgment of the applicable Special Servicer, a such default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or and (B) in the applicable reasonable, good faith judgment of the Special Servicer reasonably believes that there is a significant risk of such a default, and, in either caseServicer, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater modification would increase the recovery on the Mortgage Loan to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a net present value basis (the relevant discounting of anticipated collections amounts that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, performed at the related Net Mortgage Rate immediately prior Rate. In the case of every other modification, waiver or consent, the Special Servicer shall determine and may rely on an Opinion of Counsel (which Opinion of Counsel shall be an expense of the Trust Fund to the Anticipated Repayment Date), than would liquidation; provided extent not paid by the related Mortgagor) to the effect that (A) any such modification, extension, waiver or amendment would not both (1) effect an exchange or reissuance of the payment terms Mortgage Loan under Treasury Regulations Section 1.860G-2(b) of the Code and (2) cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with tax on “prohibited transactions” or “contributions” after the allocation and payment priorities set forth in Startup Day under the related Mortgage Loan DocumentsREMIC Provisions. In addition, including the related Intercreditor Agreementnotwithstanding Section 3.20(c), it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) but subject to the extent consistent with third paragraph of this Section 3.20(d), the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on any in respect of a Specially Serviced Mortgage Loan if the conditions set forth in the proviso to the prior paragraph are satisfied and the Special Servicer has obtained an Appraisal of the related Mortgaged Property, in connection with such extension, which Appraisal supports the determination of the Special Servicer contemplated by clause (B) of the proviso to the immediately preceding paragraph. In no event will the Special Servicer (i) extend the maturity date of a Mortgage Loan beyond a date beyond the earlier of (A) five that is two years prior to the Rated Final Distribution Date and Date, (ii) reduce the Mortgage Rate of a Mortgage Loan to less than the lesser of (A) the original Mortgage Rate of such Mortgage Loan, (B) the highest Pass-Through Rate of any Class of Certificates (other than the Class X Certificates) then outstanding and (C) a rate below the then prevailing interest rate for comparable loans, as determined by the Special Servicer, (iii) if such the Mortgage Loan is secured by a Ground Lease (and not by the corresponding fee simple interest), extend the maturity date of such Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, Loan beyond a date which is less than 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end expiration of the then-current term of the related such Ground Lease or Space Lease (plus any unilateral options to extend);
Lease; (iv) neither defer interest due on any Mortgage Loan in excess of 10% of the applicable Stated Principal Balance of such Mortgage Loan or defer the collection of interest on any Mortgage Loan without accruing interest on such deferred interest at a rate at least equal to the Mortgage Rate of such Mortgage Loan. The determination of the Special Servicer contemplated by clause (B) of the provision to the first paragraph of this Section 3.20(d) shall be evidenced by an Officer’s Certificate to such effect delivered to the Trustee and the Master Servicer nor and describing in reasonable detail the applicable basis for the Special Servicer’s determination. The Special Servicer shall make or permit append to such Officer’s Certificate any information including but not limited to income and expense statements, rent rolls, property inspection reports and appraisals that support such determination.
(e) Any payment of interest that is deferred pursuant to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may bepermitted hereunder, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Propertiesnot, for purposes of REMIC qualification hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, then notwithstanding that the terms of such calculation modification, waiver or amendment so permit. The foregoing shall in no way limit the Special Servicer’s ability to charge and collect from the Mortgagor costs otherwise collectible under the terms of the value related Mortgage Note and this Agreement together with interest thereon.
(f) The Special Servicer or, with respect to clause (i) below, the Master Servicer may, as a condition to granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided which is within its discretion pursuant to the Trustee;
(vi) subject to applicable law, terms of the instruments evidencing or securing the related Mortgage Loan Documents and is permitted by the Servicing Standardterms of this Agreement, neither require that such Mortgagor pay to it (i) as additional servicing compensation, a reasonable or customary fee for the applicable additional services performed in connection with such request; provided such fee would not itself be a “significant modification” pursuant to Treasury Regulations Section 1.1001-3(e)(2) and (ii) any related costs and expenses incurred by it. In no event shall the Master Servicer nor or the applicable Special Servicer be entitled to payment for such fees or expenses unless such payment is collected from the related Mortgagor.
(g) The Special Servicer shall permit notify the Master Servicer, any related Sub-Servicers, the Trustee, the Controlling Class Representative, the Rating Agencies and with respect to any Co-Lender Loan, the related Companion Holder, in writing, of any material modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all (including fees charged the Mortgagor) and the date thereof, and shall deliver to the Custodian for deposit in the related fees Mortgage File, an original counterpart of the agreement relating to such modification, waiver or amendment, promptly (and expenses are paid by in any event within ten Business Days) following the Borrower;execution thereof. Copies of each agreement whereby any such modification, waiver or amendment of any term of any Mortgage Loan is effected shall be made available for review upon prior request during normal business hours at the offices of the Special Servicer pursuant to Section 3.15 hereof.
(viih) the applicable Special The Master Servicer shall not permit defeasance of any Mortgage Loan to the extent inconsistent with the terms of such Mortgage Loan. Unless and to the extent the Master Servicer is precluded from preventing such defeasance by the related Mortgage Loan documents or otherwise (orprovided that the Master Servicer shall not allow such defeasance to cause either of REMIC I or REMIC II created hereunder to fail to qualify as a REMIC; provided, further, the Master Servicer may rely on an Opinion of Counsel as provided for in (ii) below), the case Master Servicer will not permit defeasance of a Performing Serviced any Mortgage Loan, consent unless: (i) the defeasance collateral consists of non-callable “Government Securities” within the meaning of the Investment Company Act of 1940, (ii) the Master Servicer has determined that the defeasance will not result in an Adverse REMIC Event (provided that the Master Servicer shall be entitled to rely conclusively on an Opinion of Counsel to that effect), (iii) the Master Servicer has notified the Rating Agencies, (iv) to the extent the defeasance of the Mortgage Loan is required by the then current applicable Rating Agency criteria to be reviewed by a Rating Agency, such Rating Agency has confirmed that such defeasance will not result in the qualification, downgrade or withdrawal of the rating then assigned to any Class of Certificates to which a rating has been assigned by such Rating Agency, (provided that no confirmation from [S&P] shall be required if the Mortgage Loan being defeased, together with all Mortgage Loans cross-collateralized with such Mortgage Loan, (i) is not one of the ten (10) largest Mortgage Loans (or cross-collateralized groups of Mortgage Loans) by Stated Principal Balance in the Trust Fund, and (ii) has a Stated Principal Balance at the time of the defeasance that is less than $20,000,000 and less than 5% of the aggregate Stated Principal Balance at the time of the defeasance of the Mortgage Loans and the Master Servicer’sServicer shall have delivered a Defeasance Certificate substantially in the form of Exhibit N hereto), (v) the Master Servicer has requested and received from the related Mortgagor (A) an Opinion of Counsel generally to the effect that the Trustee will have a perfected, first
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wells Fargo Commercial Mortgage Securities Inc)
Modifications, Waivers, Amendments and Consents. (a) The applicable Property Manager and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late any payment charges, Prepayment Premiums and Yield Maintenance Charges on, and permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Obligor on or any guarantor Guarantor of, any Serviced Lease or Mortgage Loan for which it is responsiblerequired to service and administer hereunder, and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including Insurers, the lease reviews and lease consents related thereto)Issuers, subjectthe Indenture Trustee, howeverany holder of Notes or any Controlling Party, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further subject to each of the following limitations, conditions and restrictions:
(i) if an Early Amortization Event has occurred and is continuing, neither the Property Manager nor the Special Servicer will agree to any modification, waiver or amendment of any term of, or take any of the other above referenced actions, with respect to any Lease or Mortgage Loan, without the prior written consent of the Series 2005-1 Insurer; and
(ii) other than as expressly set forth provided in Section Sections 3.02 (with respect to Default Charges and Post3.08, without the prior written consent of the Series 2005-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)1 Insurer, the applicable Master Servicer Property Manager shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts above referenced in this Section 3.20(a) actions, with respect to, to any Serviced Lease or Mortgage Loan or Serviced Pari Passu Companion Loanit is required to service and administer hereunder, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the Property Manager’s good faith and reasonable judgment judgment, would materially reduce the likelihood of the applicable Special Servicer, timely payment of amounts due thereon or would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such any Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or Lease; the applicable Special Servicer reasonably believes that there is a significant risk of such a defaultmay, andhowever, in either case, such modification, waiver, amendment or other action is reasonably likely agree to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts above referenced in this Section 3.20(a) with respect toactions, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool Specially Serviced Asset that would have any such effect, but only if (A) a material default on such Specially Serviced Asset has occurred or, (B) in the Special Servicer’s reasonable and good faith judgment, a default in respect of payment on such Specially Serviced Asset is reasonably foreseeable, and such modification, waiver, amendment or an Adverse Grantor Trust Event other action is reasonably likely to produce a greater recovery to the applicable Issuer on a present value basis than would liquidation; provided, that (x) the limitations, conditions and restrictions set forth in subparagraphs (i) and (ii) shall not apply to any modification, waiver, amendment or other action with respect with to any Lease or Mortgage Loan that is required, without the Grantor Trust Pool (exercise of the applicable Master Servicer and Issuer’s discretion, under the applicable terms of such Lease or Mortgage Loan or that is solely within the control of the related Obligor, (y) notwithstanding the foregoing, neither the Property Manager nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving an Obligor if in their reasonable and good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar and (z) none of the limitations, conditions and restrictions set forth above shall limit the Property Manager’s or the Special Servicer’s ability to terminate any Lease or Mortgage Loan in accordance with the terms thereof; provided, further, that, notwithstanding the foregoing, with respect to certain Mortgage Loans and/or Leases listed on Exhibit I attached hereto, the applicable Insurer shall be liable provided notice of all proposed modifications, waivers or amendments of the terms thereof, and the prior written consent of such Insurer (so long as no Insurer Default shall have occurred and be continuing) shall be required for decisions made under this subsection which any modification, waiver or amendment of any financial or material non-financial term thereof.
(b) The Property Manager and the Special Servicer shall have no liability to the Issuers, the Indenture Trustee, the Insurers, the holders of the Notes or to any other Person if its analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.19(a) would not materially reduce the likelihood of timely payment of amounts due thereon, or that such modification, waiver, amendment or other action is reasonably likely to produce a greater recovery to the applicable Issuer on a present value basis than would an alternative course of action, should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis in accordance with the Servicing Standard in good faith and each of them by the Property Manager or the Special Servicer, as the case may rely on Opinions of Counsel in making such decisions)be;
(vc) The Property Manager and the Special Servicer each may, as a condition to its granting any request by an Obligor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Property Manager’s or Special Servicer’s, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Lease or Mortgage Loan and is permitted by the terms of this Agreement, require that such Obligor pay to it, as additional servicing compensation, a reasonable or customary fee for the additional services performed in connection with such request, together with any related costs and expenses incurred by it; and
(Ad) All modifications, waivers, amendments and other actions entered into or taken in respect of a Lease or Mortgage Loan pursuant to this Section 3.19 shall be in writing. Each of the Property Manager and the Special Servicer shall notify the other such party and the Issuers, the Insurers and the Indenture Trustee, in writing, of any modification, waiver, amendment or other action entered into or taken in respect of any Lease or Mortgage Loan pursuant to this Section 3.19 and the date thereof, and shall deliver to the Custodian for deposit in the event related Lease File or Loan File an original counterpart of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a statethe agreements relating to such modification, political subdivision or authority thereofwaiver, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation amendment or other similar legal proceedingaction, promptly (and in any event within ten (10) Business Days) following the execution thereof. In addition, following any modification, waiver, amendment or other action agreed to by the Property Manager or the Special Servicer pursuant to Section 3.19(a) above, the applicable Master Servicer Property Manager or the applicable Special Servicer, as the case may be, shall apply deliver to the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicableIssuers, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged PropertiesInsurers, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (orIndenture Trustee and, in the case of a Performing Serviced Mortgage Loanthe Special Servicer, consent to the applicable Master Servicer’sProperty Manager, an Officer’s Certificate setting forth in reasonable detail the basis of the determinations made by it pursuant to Section 3.19(a).
Appears in 1 contract
Samples: Property Management and Servicing Agreement (Spirit Finance Corp)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer (solely as to Performing Loans) and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a as to Specially Serviced Mortgage LoanLoans) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend forgive or defer the maturity of, defer or forgive payment of interest (including including, without limitation, Default Interest and Excess Interest) on and principal of, defer or forgive late payment charges, charges and Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor of, of any Serviced Mortgage Loan for which it is responsible, required to service and respond to or approve Borrower requests for administer hereunder without the consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Trustee or any Certificateholder, subject, however, to Sections Section 3.02, Section 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to Section 3.21 and Section 3.28 and each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section 3.02 (with respect to Default Charges and Post-ARD Additional InterestSections 2.03(b), Section 3.07 (insurance)3.02, Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely Loan or affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material ActionLoan, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower Mortgagor's request for such modification, waiver or amendment, (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, each of which shall be provided reasonably promptly in accordance with the Servicing Standard, (B) 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 3.26, as applicable), and (C) if any such consent request has not been expressly denied responded to within fifteen (15) ten Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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 Master Servicer’s written 's recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer, as such time period may be extended if the Special Servicer in order is required to seek the consent of the Directing Certificateholder, the FM Controlling Holder, the SM Controlling Holder, the LM Controlling Holder, any mezzanine lender, or the Rating Agencies, to make an informed decisiondecision (or, if the Special Servicer did not request any information, within ten Business Days from such notice), such consent shall be deemed to have been granted);
(ii) other than as provided in Sections 3.02, 3.08 3.02 and 3.20(e)3.08, the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable reasonable, good faith judgment of the applicable Special Servicer, would materially impair add to, release, substitute for, or otherwise alter a material amount of the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable reasonable, good faith judgment of the applicable Special Servicer, a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, whole taking into account the subordination of the FM Component Mortgage Loan Subordinate Component and the 1901 Research Boulevard B Note) on a net present value basis than xxxxx xxxxxxxxxxx;
(iii) the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate shall not extend (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Datea Performing Loan, at the related Net Mortgage Rate immediately prior consent to the Anticipated Repayment Date), than would liquidation; provided that (AMaster Servicer's extending) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier earliest of (A) five years prior to the Rated Final Distribution Date Date, and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s Mortgagor's leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-then current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any of the Component Mortgage Loan REMIC, REMIC Pool I or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions)REMIC II;
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrowerrelated Mortgagor;
(viivi) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s's permitting) any Mortgagor to add or substitute any real estate collateral for its Loan unless the Special Servicer shall have first determined in its reasonable, good faith judgment, based upon a Phase I Environmental Assessment (and any additional environmental testing that the Special Servicer deems necessary and prudent) conducted by an Independent Person who regularly conducts Phase I Environmental Assessments, at the expense of the Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws or regulations; and
(vii) the Special Servicer shall not permit the release, including in connection with a substitution contemplated by clause (vi) above, any collateral securing an outstanding Loan, except as provided in Section 3.09(d), or except where a Loan (or, in the case of a Cross-Collateralized Group, where such entire Cross-Collateralized Group) is satisfied, or except in the case of a release where (A) either (1) the use of the collateral to be released will not, in the good faith and reasonable judgment of the Special Servicer, materially and adversely affect the net operating income being generated by or the use of the related Mortgaged Property, or (2) there is a corresponding principal pay down of such Loan in an amount at least equal to the appraised value of the collateral to be released (or substitute collateral with an appraised value at least equal to that of the collateral to be released, is delivered), (B) the remaining Mortgaged Property (together with any substitute collateral) is, in the Special Servicer's good faith and reasonable judgment, adequate security for the remaining Loan and (C) such release would not, in and of itself, result in an Adverse Rating Event with respect to any Class of Rated Certificates (as confirmed in writing to the Trustee by each Rating Agency); provided that the limitations, conditions and restrictions set forth in clauses (i) through (vii) above shall not apply to any act or event (including, without limitation, a release, substitution or addition of collateral) in respect of any Loan that either occurs automatically, or results from the exercise of a unilateral option by the related Mortgagor within the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such Loan in effect on the Closing Date (or, in the case of a Replacement Mortgage Loan, on the related date of substitution); and provided, further, that, notwithstanding clauses (i) through (vii) above, neither the Master Servicer nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Mortgagor if, in its reasonable, good faith judgment, such opposition would not ultimately prevent the confirmation of such plan or one substantially similar; and provided, further, that, notwithstanding clause (vii) above, neither the Master Servicer nor the Special Servicer shall be required to obtain any confirmation of the Certificate ratings from the Rating Agencies to grant, or to subordinate the lien of Loans to, easements that do not materially affect the use or value of a Mortgaged Property or the Mortgagor's ability to make any payments with respect to the related Loan.
(b) Neither the Master Servicer nor the Special Servicer shall have any liability to the Trust, the Certificateholders and in the case of a Whole Loan, the related Companion Loan Noteholders or any other Person if its analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20
(c) Any payment of interest that is deferred pursuant to Section 3.20(a) shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Loan, notwithstanding that the terms of such Loan so permit or that such interest may actually be capitalized.
(d) The Master Servicer (as to Performing Loans) and the Special Servicer (as to Specially Serviced Loans) each may, as a condition to its granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Master Servicer's or Special Servicer's, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to it, as additional servicing compensation, a reasonable fee relating to such consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid principal balance of the related Loan) for the additional services performed in connection with such request, together with any related costs and expenses incurred by it; provided that the charging of such fees would not otherwise constitute a "significant modification" of the Loan pursuant to Treasury Regulations Section 1.860G-2(b). All such fees collected by the Master Servicer and/or the Special Servicer shall be allocable between such parties, as Additional Master Servicing Compensation and Additional Special Servicing Compensation, respectively, as provided in Section 3.11.
(f) With respect to any ARD Loan after its Anticipated Repayment Date, the Master Servicer shall be permitted to waive all or any accrued Excess Interest if, prior to the related maturity date, the related Mortgagor has requested the right to prepay the Loan in full together with all payments required by the Loan in connection with such prepayment except for all or a portion of accrued Excess Interest; provided, that the Master Servicer's determination to waive the right to such accrued Excess Interest is reasonably likely to produce a greater payment to Certificateholders on a net present value basis than a refusal to waive the right to such Excess Interest. Any such waiver shall not be effective until such payment is tendered. The Master Servicer shall have no liability to the Trust, the Certificateholders or any other person so long as such determination is based on such criteria. Notwithstanding anything contained in this Agreement to the foregoing, the Master Servicer shall be required to seek the consent of the Directing Certificateholder prior to waiving any Excess Interest. The Directing Certificateholder's consent to a waiver shall be deemed granted if the Directing Certificateholder fails to respond to such request within ten Business Days of its receipt of such request. Except as permitted in Section 3.20(a), the Special Servicer shall have no right to waive the payment of Excess Interest.
(g) The Master Servicer shall not be required to seek the consent of the Special Servicer or any Certificateholder or obtain any confirmation of the Certificate ratings from the Rating Agencies to approve the following modifications, waivers or amendments of the Loans: (i) waivers of minor covenant defaults (other than financial covenants), including late financial statements; (ii) releases of (A) non-material parcels of a Mortgaged Property subject to condemnation; (B) parcels of a Mortgaged Property not given any value in the underwriting of the Loan; or (C) similar non-material parcels of a Mortgaged Property; (iii) grants of easements or subordinations of the lien of Loans to easements that do not materially affect the use or value of a Mortgaged Property or a borrower's ability to make any payments with respect to the related Loan; and (iv) other routine approvals, including the granting of subordination, non-disturbance and attornment agreements and leasing consents, typically performed by a Master Servicer on a routine basis; provided that any such modification, waiver or amendment (w) would not in any way affect a payment term of the Certificates, (x) would not constitute a "significant modification" of such Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event or Adverse Grantor Trust Event (y) agreeing to such modification, waiver or amendment would be consistent with the Servicing Standard, and (z) agreeing to such modification, waiver or amendment shall not violate the terms, provisions or limitations of this Agreement or any other document contemplated hereby.
(i) If the Master Servicer or the Special Servicer collects a modification fee or a modification application fee in connection with a modification or proposed modification of a Loan, then the Master Servicer or the Special Servicer, as applicable, will apply that fee to cover the costs and expenses associated with that modification or proposed modification that are not otherwise paid by the related 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 modification fee (such remaining portion, a "Net Modification Fee") or of such modification application fee (such remaining portion, a "Net Modification Application Fee") will be applied as additional compensation to the Master Servicer or the Special Servicer in accordance with Section 3.11.
(j) None of the Trustee, Master Servicer or the Special Servicer shall permit the release contemplated by Section 10.04(A) of the JQH Hotel Portfolio Mortgage Loan loan agreement without the delivery of an Opinion of Counsel that such release complies with applicable REMIC Provisions. In addition, none of the Trustee, Master Servicer or the Special Servicer shall permit the releases of improved parcels contemplated by Sections 2.15 and 2.16 of the Fashion Show Mall Whole Loan loan agreement without the delivery of an Opinion of Counsel that such release complies with applicable REMIC Provisions.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc., Series 2005-1)
Modifications, Waivers, Amendments and Consents. (a) The applicable Subject to Sections 3.20(b) through 3.20(f) and 3.20(l) below, and further subject to Section 6.11, the Special Servicer (or, under the limited circumstances set forth in Section 3.20(c), the case Master Servicer) may, on behalf of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) Trustee, agree to any modification, extension, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower various Mortgagor requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subjectwithout the consent of the Trustee, howeverany Certificateholder, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, the Master Servicer (in the case of each any such action taken by the Special Servicer) or, except as expressly set forth below, the Special Servicer (in the case of any such action taken by the Master Servicer).
(b) All modifications, extensions, waivers or amendments of any Mortgage Loan (including the lease reviews and lease consents related thereto) shall be in writing and shall be considered and effected in a manner consistent with the Servicing Standard.
(c) In the case of any Mortgage Loan other than a Specially Serviced Loan CombinationMortgage Loan, and subject to the rights of third parties the Special Servicer set forth in below, the related Intercreditor Agreement, and, further Master Servicer shall be responsible for responding to each any request by a Mortgagor for the consent or approval of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (mortgagee with respect to Default Charges and Post-ARD Additional Interest)a modification, Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modificationextension, waiver or amendment of any term ofthereof, provided that such consent or take any of the other acts referenced in this approval or such modification, extension, waiver or amendment would not (except as permitted by Section 3.20(a3.02(a), Section 3.08(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (xand Section 3.20(l) hereof) affect the amount or timing of any related of the payment terms of principal, interest or other amount payable under such Mortgage LoanLoan (including payment terms related to late payment charges), (y) materially and adversely affect result in the security release of the related Mortgagor from any material term thereunder, waive any rights thereunder with respect to any guarantor thereof, relate to the release, addition or substitution of any material collateral for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan relate to any waiver of or granting of consent under a "due-on- 133 sale" or "due-on-encumbrance" clause. With respect to any action proposed to be taken by the Master Servicer under this Section 3.20(c) where the thresholds in clauses (zi) constitute a Material Actionthrough (v) below are exceeded, unless (solely or which involves the situations set forth in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) proviso to the applicable Master Servicer has obtained previous sentence, the consent of the applicable Special Servicer (it being understood and agreed that (A) only may take such action. To the applicable extent consistent with the foregoing, but subject to Section 3.20(f), the Master Servicer shall promptly provide also be responsible for the applicable Special Servicer following with (x) written notice of any Borrower request for such modification, waiver or amendment, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available respect to the applicable Master Servicer Mortgage Loans (other than Specially Serviced Mortgage Loans):
(i) Approving any waiver affecting the timing of receipt of financial statements from any Mortgagor, provided that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (B) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (financial statements are delivered no less than quarterly and subject to Section 3.24 and/or 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) 60 days or, in connection with a Serviced Loan Combination, at least five 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 end of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available calendar quarter to the applicable Master Servicer in order to make an informed decision, which such consent shall be deemed to have been grantedfinancial statements relate;
(ii) Approving routine leasing activity with respect to leases for less than the lesser of (A) 50,000 square feet and (B) 20% of the related Mortgaged Property;
(iii) Approving a transfer of equity in a Mortgagor from one current equity holder to another, provided that such transfer of equity does not (A) affect (if applicable) the status of such Mortgagor or such equity holder as a special purpose, bankruptcy-remote entity, (B) result in a change of control of such Mortgagor, (C) cause the transferee to hold more than 49% of the equity in such Mortgagor or (D) relate to a Mortgage Loan that represents 2% or more of the then aggregate principal balance of the Mortgage Pool;
(iv) Approving annual budgets for the related Mortgaged Property, provided that no such budget (A) relates to a fiscal year in which an Anticipated Repayment Date occurs, (B) provides for the payment of operating expenses in an amount equal to more than 110% of the amounts budgeted therefor for the prior year or (C) provides for the payment of any material expenses to any affiliate of the Mortgagor (other than as provided with respect to the payment of the management fee to any property manager if such management fee is no more than the management fee in Sections 3.02, 3.08 and 3.20(eeffect on the Cut-off Date), ; and
(v) Approving easements or rights of way that do not materially affect the applicable Special Servicer shall not agree use or value of a Mortgaged Property or the Mortgagor's ability to make any payments with respect to the related Mortgage Loan.
(1) the related Mortgagor is in monetary default or material non-monetary default with respect to the Mortgage Loan or, in the case reasonable, good faith judgment of the Master Servicer, such default is reasonably foreseeable, and (2) such Mortgage Loan is not otherwise required to become a Performing Specially Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loanhereunder, consent to (B) in the applicable reasonable, good faith judgment of the Master Servicer’s agreeing to) any , such modification, extension, waiver or amendment of any term of, or take (or, in would increase the case of a Performing Serviced recovery on the Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole), on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (andthe Certificateholders, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, performed at the related Net Mortgage Rate immediately prior to the Anticipated Repayment DateRate), than would liquidation; provided that and (AC) any such modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in not cause an Adverse REMIC Event with in respect to of any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’sTrust.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass-Through Certificates Series 2000-C4)
Modifications, Waivers, Amendments and Consents. (a) The applicable Except as set forth in Section 3.08(a), Section 3.08(b), Section 3.08(f), Section 3.20(a), Section 3.20(d), and Section 3.20(j), but subject to any other conditions set forth thereunder, the Servicer shall not modify, waive or amend a Mortgage Loan without the prior written consent of the Special Servicer; provided that, the Servicer shall forward to the Special Servicer (in requests to extend the case maturity date of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is not a Specially Serviced Mortgage Loan, and the Special Servicer may approve such request. Notwithstanding the foregoing, the Servicer, without the consent of the Special Servicer, may modify or amend the terms of any Mortgage Loan in order to (i) cure any ambiguity or mistake therein or (ii) correct or supplement any provisions therein which may be inconsistent with any other provisions therein or correct any error, provided that, if the Mortgage Loan is not in default or default with respect thereto is not reasonably foreseeable, such modification or amendment would not be a "significant modification" of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b). Neither the Servicer nor the Special Servicer shall permit the substitution of any Mortgaged Property (or any portion thereof) for one or more other parcels of real property at any time the Mortgage Loan is not in default pursuant to the terms of the related Mortgage Loan documents or default with respect thereto is not reasonably foreseeable unless (i) the Servicer or the applicable Master Special Servicer, as applicable, obtains from Moody's and Fitch (and delivers to the Directing Certificateholder) a written confirmation that such substitution will not cause a downgrading, qualification or withdrawal of the then current rating assigned to any of the Certificates and (ii) either (a) such substitution is at the unilateral option of the Mortgagor or otherwise occurs automatically pursuant to the terms of the Mortgage Loan in effect on the Startup Day, within the meaning of Treasury Regulations Section 1.1001-3, or (b) it has received an Opinion of Counsel to the effect that such substitution would not be a "significant modification" of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver or amendment (in including, without limitation, the case forgiveness or deferral of interest or principal or the substitution of collateral pursuant to the terms of the Mortgage Loan or otherwise, the release of collateral or the pledge of additional collateral) of the terms of a Performing Specially Serviced Mortgage Loan with respect to which a payment default or Performing other material default has occurred or a payment default or other material default is, in the Special Servicer's judgment, reasonably foreseeable (as evidenced by an Officer's Certificate of the Special Servicer), is reasonably likely to produce a greater recovery on a net present value basis (the relevant discounting to be performed at the related Mortgage Rate) than liquidation of such Specially Serviced Pari Passu Companion Mortgage Loan) , then the Special Servicer may (consistent with the Servicing Standard) agree to any a modification, waiver or amendment of such Specially Serviced Mortgage Loan, subject to (x) the provisions of this Section 3.20(b) and Section 3.20(c), (y) the approval of the Directing Certificateholder as provided in Section 3.21 and (z) with respect to an AB Loan, the rights of the related Companion Holder to advise the Special Servicer with respect to, or consent to, such modification, waiver or amendment pursuant to the terms of the related AB Intercreditor Agreement. The Special Servicer shall use its reasonable efforts to the extent possible to cause each Specially Serviced Mortgage Loan to fully amortize prior to the Rated Final Distribution Date and shall not agree to a modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Specially Serviced Mortgage Loan for which it is responsibleif such modification, and respond to waiver or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictionsamendment would:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), extend the applicable Master Servicer shall not agree to any modification, waiver or amendment maturity date of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any such Specially Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond occurring later than the earlier of (Aa) five two years prior to the Rated Final Distribution Date and (Bb) if such Specially Serviced Mortgage Loan is secured by a Mortgage solely or primarily on leasehold estate and not also the related Borrower’s leasehold interest in fee interest, the related Mortgaged Property, 20 date occurring twenty years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end expiration of such leasehold; or
(ii) provide for the deferral of interest unless (a) interest accrues thereon, generally, at the related Mortgage Rate and (b) the aggregate amount of such deferred interest does not exceed 10% of the then-current term unpaid principal balance of the related Ground Lease or Space Lease (plus any unilateral options to extend);Specially Serviced Mortgage Loan.
(ivc) neither Any provision of this Section 3.20 to the applicable Master contrary notwithstanding, except when a Mortgage Loan is in default or default with respect thereto is reasonably foreseeable, no fee described in this paragraph shall be collected by any Servicer nor the applicable or Special Servicer shall make from a Mortgagor (or permit on behalf of the Mortgagor) in conjunction with any consent or any modification, waiver or amendment of a Mortgage Loan (unless the amount thereof is specified in the related Mortgage Note) if the collection of such fee would cause such consent, modification, waiver or amendment to be a "significant modification" of the Mortgage Note within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) To the extent consistent with this Agreement, the Servicer or the Special Servicer may agree to any term ofwaiver, modification or take amendment of a Mortgage Loan that is not in default or as to which default is not reasonably foreseeable only if it provides the Trustee with an Opinion of Counsel (at the expense of the related Mortgagor or such other Person requesting such modification or, if such expense cannot be collected from the related Mortgagor or such other Person, to be paid by the Servicer or Special Servicer as a Servicing Advance) to the effect that the contemplated waiver, modification or amendment (i) will not be a "significant modification" of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b) and (ii) will not cause (x) any of the other acts referenced in this Section 3.20(aLoan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or (y) with respect toany of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax under the REMIC Provisions. Notwithstanding the foregoing, neither the Servicer nor the Special Servicer may waive the payment of any Yield Maintenance Charge or the requirement that any prepayment of a Mortgage Loan be made on a Due Date, or Serviced Loan Combination if not made on a Due Date, be accompanied by all interest that would result in an Adverse REMIC Event be due on the next Due Date with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall Mortgage Loan that is not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);a Specially Serviced Mortgage Loan.
(ve) (A) in In the event of a taking modification which creates Mortgage Deferred Interest, such Mortgage Deferred Interest will be allocated to reduce the Distributable Certificate Interest of the Class or Classes of Certificates pursuant to Section 4.06.
(f) Subject to Section 3.20(c), the Servicer and the Special Servicer each may, as a condition to its granting any portion request by a Mortgagor for consent, modification (including extensions), waiver or indulgence or any other matter or thing, the granting of any real property collateral which is within the Servicer's or the Special Servicer's, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing an outstanding Serviced the related Mortgage Loan and is permitted by a statethe terms of this Agreement, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of require that such condemnation or other similar legal proceeding, Mortgagor pay to the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply as additional servicing compensation, a reasonable or customary fee, for the Condemnation Proceeds additional services performed in connection with such request.
(or other similar awardg) All modifications (including extensions), waivers and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance amendments of the Serviced Mortgage LoanLoans entered into pursuant to this Section 3.20 shall be in writing, unless immediately after signed by the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, related Mortgagor (and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of by any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification guarantor of the related Mortgage Loan, then if such calculation guarantor's signature is required by the Special Servicer in accordance with the Servicing Standards).
(h) Each of the value of collateral will be solely based on Servicer and the real property included therein and exclude personal property and going concern valueSpecial Servicer shall notify the Rating Agencies, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
, the Directing Certificateholder (vi) subject to applicable lawor in the case of a Component Mortgage Loan, the related Component Mortgage Loan Documents Representative) and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit each other in writing of any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all and the date thereof, and shall deliver to the Trustee or the related fees Custodian for deposit in the related Mortgage File, an original counterpart of the agreement relating to such modification, waiver or amendment, promptly (and expenses are paid by in any event within 10 Business Days) following the Borrower;execution thereof. Following receipt of the Servicer's or the Special Servicer's, as applicable, delivery of the aforesaid modification, waiver or amendment to the Paying Agent, the Paying Agent shall forward a copy thereof to each Holder of a Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class NR Certificate upon request and, if such modification, waiver or amendment is with respect to a Component Mortgage Loan, to each Holder of the related Component Mortgage Loan Certificates upon request.
(viii) [RESERVED].
(j) Notwithstanding the applicable foregoing, neither the Servicer nor the Special Servicer shall permit the substitution of any Mortgaged Property pursuant to the defeasance provisions of any Mortgage Loan (or any portion thereof) unless such defeasance complies with Treasury Regulations Section 1.860G-2(a)(8) and the Servicer or the Special Servicer, as applicable, has received (i) a certificate of an Independent certified public accountant to the effect that such substituted property will provide cash flows sufficient to meet all payments of interest and principal (including payments at maturity) on such Mortgage Loan in compliance with the requirements of the terms of the related Mortgage Loan documents, (ii) one or more Opinions of Counsel (at the expense of the related Mortgagor) to the effect that the Trustee, on behalf of the Trust Fund, will have a first priority perfected security interest in such substituted Mortgage Property; provided, however, that, to the extent consistent with the related Mortgage Loan documents, the related Mortgagor shall pay the cost of any such opinion as a condition to granting such defeasance, (iii) to the extent consistent with the related Mortgage Loan documents, the Mortgagor shall establish a single purpose entity to act as a successor Mortgagor, if so required by the Rating Agencies, (iv) to the extent permissible under the related Mortgage Loan documents, the Servicer shall use its reasonable efforts to require the related Mortgagor to pay all costs of such defeasance, including but not limited to the cost of maintaining any successor Mortgagor and (v) to the extent permissible under the Mortgage Loan documents, the Servicer shall obtain, at the expense of the related Mortgagor, written confirmation from the Rating Agencies that such defeasance will not cause the downgrade, withdrawal or modification of the then current ratings of the Certificates; provided, however, that (a) the Servicer shall not be required to obtain such written confirmation from Fitch to the extent that such Mortgagor has delivered the certificate required pursuant to clause (i) above, delivered the opinion required pursuant to clause (ii) above and established the single purpose entity pursuant to clause (iii) above unless such Mortgage Loan at the time of such defeasance is one of the ten largest Mortgage Loans by Stated Principal Balance and (b) the Servicer shall not be required to obtain the Moody's confirmation referenced in clause (v) above with respect to any Xxxxxxge Loan which has a Stated Principal Balance less than $20,000,000 and represents less than 5% of the Stated Principal Balance of the Mortgage Pool, so long as such Mortgage Loan is not one of the ten largest Mortgage Loans by Stated Principal Balance.
(k) Notwithstanding anything herein or in the related Mortgage Loan documents to the contrary, the Servicer or the Special Servicer may permit the substitution of "government securities," within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, that comply with Treasury Regulations Section 1.860G-2(a)(8) for any Mortgaged Property pursuant to the defeasance provisions of any Mortgage Loan (oror any portion thereof) in lieu of the defeasance collateral specified in the related Mortgage Loan documents; provided that the Servicer or the Special Servicer reasonably determines that allowing their use would not cause a default or event of default to become reasonably foreseeable and the Servicer or the Special Servicer receives an Opinion of Counsel (at the expense of the Mortgagor to the extent permitted under the Mortgage Loan documents) to the effect that such use would not be and would not constitute a "significant modification" of such Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event with respect to any REMIC and provided further that the requirements set forth in Section 3.20(j) (including the ratings confirmations) are satisfied; and further provided that such securities are backed by the full faith and credit of the United States government, or the Servicer or the Special Servicer shall obtain a written confirmation of each Rating Agency that the use of such securities will not result in the downgrade, withdrawal or qualification of the then current ratings of any Class of Certificates outstanding.
(l) If required under the related Mortgage Loan documents or if otherwise consistent with the Servicing Standards, the Servicer shall establish and maintain one or more accounts (the "Defeasance Accounts"), which shall be Eligible Accounts, into which all payments received by the Servicer from any defeasance collateral substituted for any Mortgaged Property shall be deposited and retained, and shall administer such Defeasance Accounts in accordance with the Mortgage Loan documents. Notwithstanding the foregoing, in no event shall the case Servicer permit such amounts to be maintained in the Defeasance Account for a period in excess of 90 days, unless such amounts are reinvested by the Servicer in "government securities," within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, that comply with Treasury Regulations Section 1.860G-2(a)(8). To the extent not required or permitted to be placed in a Performing Serviced separate account, the Servicer shall deposit all payments received by it from defeasance collateral substituted for any Mortgaged Property into the Certificate Account and treat any such payments as payments made on the Mortgage Loan in advance of its Due Date in accordance with clause (a)(i) of the definition of Available Distribution Amount, and not as a prepayment of the related Mortgage Loan, consent . Notwithstanding anything herein to the applicable Master Servicer’scontrary, in no event shall the Servicer permit such amounts to be maintained in the Certificate Account for a period in excess of 365 days.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Jp Morgan Chase Com Sec Corp Pass Thru Cert Ser 2003-Cibc6)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Penalty Interest and Additional Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower Mortgagor on or any guarantor of, any Serviced Mortgage Loan, and/or provide consents with respect to any leasing activity at a Mortgaged Property securing any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including Trustee or any Certificateholder; provided, that the lease reviews and lease consents related thereto), subject, however, Special Servicer's right to Sections do so shall be subject to Section 3.08, 3.24Section 6.11 and, 3.26, and/or 3.28, as if applicable, Section 6.12 (and, in the case of each Mortgage Loan in a Serviced Loan Combination, subject to the rights terms of third parties set forth in the related Loan Combination Intercreditor Agreement, ) and, further further, to each the following subsections of this Section 3.20.
(b) All modifications, waivers or amendments of any Serviced Mortgage Loan shall be in writing and shall be considered and effected in accordance with the Servicing Standard. Neither of the following limitationsMaster Servicers nor the Special Servicer, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest)applicable, Section 3.07 (insurance)shall make or permit or consent to, Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers)as applicable, Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would result in an Adverse REMIC Event. Either Master Servicer or the Special Servicer shall determine and may conclusively rely on an Opinion of Counsel (xwhich Opinion of Counsel shall be an expense of the Trust Fund to the extent not paid by the related Mortgagor) to the effect that such modification, waiver or amendment would not (1) effect an exchange or reissuance of the Serviced Mortgage Loan under Treasury Regulations Section 1.860G-2(b) of the Code, (2) cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions, or (3) adversely affect the status of any of Grantor Trust A-2FL, Grantor Trust AJ-FL or Grantor Trust E under the Code.
(c) The Special Servicer, on behalf of the Trust Fund, may agree or consent to (or permit either Master Servicer to agree or consent to) any modification, waiver or amendment of any term of any Serviced Mortgage Loan that would:
(i) affect the amount or timing of any related payment of principal, interest or other amount (including Prepayment Premiums or Yield Maintenance Charges, but excluding Penalty Interest and amounts payable under such Mortgage Loanas additional servicing compensation) payable thereunder- (including, (y) materially and adversely affect subject to the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely discussion in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of following paragraph, any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicablerelated Balloon Payment), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days ; or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided affect the obligation of the related Mortgagor to pay a Prepayment Premium or Yield Maintenance Charge or permit a Principal Prepayment during any period in Sections 3.02, 3.08 and 3.20(e), which the applicable Special Servicer shall not agree to related Mortgage Note prohibits Principal Prepayments; or
(or, iii) in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless Loan or reduce the likelihood of timely payment of amounts due thereon; only if (A) a material default on such the Serviced Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer's judgment, a material default with respect to payment on such the Serviced Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or and (B) the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to the Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(sNon-Trust Noteholder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date)basis, than would liquidation; provided that (A) any modification. In addition, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) subject to the extent consistent with third paragraph of this Section 3.20(c), the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on any in respect of a Specially Serviced Mortgage Loan if the conditions set forth in the proviso to the prior paragraph are satisfied and the Special Servicer has obtained an Appraisal of the related Mortgaged Property in connection with such extension, which Appraisal supports the determination of the Special Servicer contemplated by clause (B) of the proviso to the immediately preceding paragraph. In no event will either Master Servicer or the Special Servicer (i) extend the maturity date of a Serviced Mortgage Loan beyond a date beyond the earlier of (A) five that is two years prior to the Rated Final Distribution Date and (Bii) if such the Serviced Mortgage Loan is secured by a Ground Lease (and not by the corresponding fee simple interest), extend the maturity date of such Serviced Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, Loan beyond a date which is less than 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten and with the consent of the Controlling Class Representative, 10 years) prior to the end expiration of the then-current term of the related such Ground Lease or Space Lease (plus including any unilateral options to extend);
(iv) neither extend such term. The determination of the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any contemplated by clause (B) of the other acts referenced in proviso to the first paragraph of this Section 3.20(a3.20(c) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in shall be evidenced by an Adverse REMIC Event with respect Officer's Certificate to any REMIC Pool or an Adverse Grantor Trust Event with respect with such effect delivered to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceedingTrustee, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (orand, in the case of a Performing Serviced Mortgage LoanLoan Combination, consent to the applicable Master related Non-Trust Noteholder(s) and describing in reasonable detail the basis for the Special Servicer’s's
Appears in 1 contract
Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2006-4)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer Except as set forth in Section 3.02(a) and in this Section 3.20 but with respect to any Serviced Whole Loan, subject to the rights (in if any) of the case related holder(s) of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or to advise the applicable Master Servicer (in the case of with respect to, or consent to, a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combinationamendment, to the rights of third parties set forth extent provided in the related Intercreditor Co-Lender Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer Servicers shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced a Mortgage Loan or Serviced Pari Passu Companion Whole Loan. Notwithstanding the foregoing, that would with respect to Mortgage Loans (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such than Non-Serviced Mortgage Loans) or any Serviced Whole Loan required to be serviced by it hereunder that are not Specially Serviced Mortgage Loans, the Servicers may, without receipt of written confirmation from the Rating Agencies as to the ratings of the Certificates or any Serviced Pari Passu Companion Loan Securities or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer or the Directing Certificateholder:
(it being understood i) approve routine leasing activity (including any subordination, standstill and agreed attornment agreements) with respect to any lease for less than the lesser of (a) 20,000 square feet and (b) 20% of the related Mortgaged Property;
(ii) approve a change of the property manager at the request of the related Mortgagor, provided, that (A) the applicable Master Servicer shall promptly provide successor property manager is not affiliated with Mortgagor and is a nationally or regionally recognized manager of similar properties, (B) the related Mortgage Loan does not have an outstanding principal balance in excess of $5,000,000 and (C) the subject Mortgaged Property does not secure a Serviced Companion Loan;
(iii) approve any waiver affecting the timing of receipt of financial statements from any Mortgagor, provided, that, such financial statements are delivered no less than quarterly and within 60 days of the end of the calendar quarter;
(iv) approve annual budgets for the related Mortgaged Property, provided, that no such budget (1) provides for the payment of operating expenses in an amount equal to more than 110% of the amounts budgeted therefor for the prior year or (2) provides for the payment of any material expenses to any affiliate of the Mortgagor (other than the payment of a management fee to any property manager if such management fee is no more than the management fee in effect on the Cut-Off Date);
(v) subject to other restrictions herein regarding Principal Prepayments, waive any provision of a Mortgage Loan requiring a specified number of days notice prior to a Principal Prepayment;
(vi) approve modifications, consents or waivers in connection with a defeasance permitted by the terms of the related Mortgage Loan if the applicable Special Servicer with receives an Opinion of Counsel (xwhich Opinion of Counsel shall be an expense of the Mortgagor) written notice of any Borrower request for to the effect that such modification, waiver or amendmentconsent would not cause any REMIC to fail to qualify as a REMIC under the Code or result in a "prohibited transaction" under the REMIC Provisions; and
(vii) consent to subject the related Mortgaged Property to an easement or right-of-way for utilities, (y) 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 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, (B) the applicable Special Servicer shall decide whether to withhold or grant such consent 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; provided, however, if the Mortgage Loan is a Serviced Whole Loan, the applicable Servicer shall provide written notice of such modification, waiver and amendment to the holder of the related Serviced Companion Loan to the extent required under the related Co-Lender Agreement; provided, further, that such Servicer shall promptly notify the Special Servicer of any requests not subject to this Section 3.24 and/or 3.26, as applicable)3.20(a) for which the Special Servicer is responsible pursuant to this Section 3.20 and shall deliver to the Special Servicer (which delivery may be by electronic transmission in a format acceptable to such Servicer and Special Servicer) a copy of the request, and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five Business Days after the time period provided for all information in the related Intercreditor Agreement) possession of the applicable Servicer that the Special Servicer may reasonably request related thereto. Other than with respect to modifications, waivers and consents specifically described in the prior paragraph, the applicable Servicers will forward all requests (upon the Servicer's receipt of notice of such requests) for modifications, waivers and consents along with copies of the relevant loan documents to the Special Servicer’s receipt . The Servicers shall reasonably cooperate with the Special Servicer and shall provide the Special Servicer with any additional information from the related Credit File that the Special Servicer reasonably may request.
(b) For the avoidance of doubt, and without limiting the generality of the foregoing, (i) any request for the disbursement of earnouts or holdback amounts with respect to any Mortgage Loan set forth on the attached Schedule 12 and any Specially Serviced Mortgage Loans, hereto received by the Servicers shall be submitted to the Special Servicer for processing and (ii) any such request with respect to any other Mortgage Loan will be processed by the applicable Master Servicer Servicer. For purposes of this Agreement, "disbursement of earnouts or holdback amounts" shall mean the disbursement or funding to a Mortgagor of previously unfunded, escrowed or otherwise reserved portions of the loan proceeds of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available Mortgage Loan until certain conditions precedent thereto relating to the satisfaction of performance related criteria (e.g., project reserve thresholds, lease-up requirements, sales requirements, etc.) as set forth in the applicable Master Servicer in order to make an informed decisionMortgage Loan documents, such consent shall be deemed to have been granted;
satisfied. Neither the Servicers nor the Special Servicer shall permit the substitution of any Mortgaged Property (or any portion thereof) for one or more other parcels of real property at any time the Mortgage Loan or Serviced Whole Loan is not in default pursuant to the terms of the related loan documents or default with respect thereto is not reasonably foreseeable unless (A) either (i) such substitution is at the unilateral option of the Mortgagor or otherwise occurs automatically pursuant to the terms of the Mortgage Loan or Serviced Whole Loan, within the meaning of Treasury Regulations Section 1.1001-3, or (ii) other than as provided it has received an Opinion of Counsel to the effect that such substitution would not be a "significant modification" of the Mortgage Loan or Serviced Whole Loan within the meaning of Treasury Regulations Section 1.860G-2(b) and (B) to the extent not inconsistent with the loan documents, it has received a prior written confirmation from each Rating Agency that such substitution will not result in Sections 3.02the withdrawal, 3.08 and 3.20(e)downgrade, or qualification of the applicable Special Servicer shall not agree rating assigned by such Rating Agency to (any Class of Certificates or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Whole Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment class of any term of, or take (or, in the case of a Performing related Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for Securities then rated by such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’sRating Agency.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GE Commercial Mortgage Corporation, Series 2007-C1 Trust)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend forgive or defer the maturity of, defer or forgive payment of interest (including including, without limitation, Default Interest) on and principal of, defer or forgive late payment charges, charges and Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor of, of any Serviced Mortgage Loan for which it is responsiblerequired to service and administer hereunder (except that any assumption with respect to a Mortgage Loan serviced and administered by the Master Servicer must also be consented to by the Special Servicer), and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Trustee or any Certificateholder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section 3.02 (with respect to Default Charges Charges) and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowersclauses), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), neither the applicable Master Servicer nor the Special Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially it is required to service and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan administer hereunder that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of Master Servicer's or the applicable Special Servicer's good faith and reasonable judgment, would materially impair alter the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or reduce the applicable Special Servicer reasonably believes that there is a significant risk likelihood of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case timely payment of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (thereon or, to the extent consistent required by the REMIC Provisions, materially increase, substitute or otherwise alter the collateral for the Mortgage Loan (other than the alteration or construction of improvements thereon) or any guarantee or credit enhancement contract with respect thereto (other than the Servicing Standardsubstitution of a similar commercially available credit enhancement contract); provided, giving due consideration to however, the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit may agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, a Specially Serviced Mortgage Loan that would have any such effect, but only if a material default on such Mortgage Loan has occurred or, in the Special Servicer's reasonable and good faith judgment, a default in respect of payment on such Mortgage Loan is reasonably foreseeable, and such modification, waiver, amendment or other action is reasonably likely to produce a greater recovery to Certificateholders (as a collective whole) on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders to be performed at the related Net Mortgage Rate), than would liquidation;
(ii) the Special Servicer may not, in connection with any particular extension, extend the maturity date of any Specially Serviced Mortgage Loan beyond August 20, 2028, or beyond the date which is 10 years prior to the expiration date of any related Ground Lease;
(iii) unless the proviso in Section 3.20(a)(i) above applies, neither the Master Servicer nor the Special Servicer shall make or permit any modification, waiver or amendment of any term of, referenced in this Section 3.20(a) or in Section 3.08 with respect to, any Mortgage Loan not otherwise permitted by this Section 3.20(a) or Serviced Loan Combination in Section 3.08 that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to constitute a "significant modification" of such Mortgage Loan within the Grantor Trust Pool meaning of Treasury Regulations Section 1.860G-2(b) (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them the Master Servicer and the Special Servicer may rely on Opinions of Counsel in making such decisions);
(viv) neither the Master Servicer nor the Special Servicer shall permit any Mortgagor to add or substitute any collateral for an outstanding Mortgage Loan, which additional or substitute collateral constitutes real property, unless (A) the Special Servicer shall have first determined in accordance with the event Servicing Standard, based upon a Phase I Environmental Assessment (and such additional environmental testing as the Special Servicer deems necessary and appropriate) prepared by an Independent Person who regularly conducts Phase I Environmental Assessments (and such additional environmental testing), at the expense of a taking the Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any portion of Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, then applicable environmental laws and/or regulations and (B) the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have obtained written confirmation from each Rating Agency that such substitution will not result in the Condemnation Proceeds (withdrawal, downgrade or other similar award) and the net proceeds from the receipt qualification, as applicable, of any insurance rating then assigned to any Class of Certificates;
(v) neither the Master Servicer nor the Special Servicer shall release any collateral securing an outstanding Mortgage Loan (including, without limitation, as part of a substitution of collateral), except in connection with a payment in full or tort settlement with respect a defeasance pursuant to such real property to pay down the principal balance terms of the Serviced related Mortgage Loan and this Agreement or, subject to the other provisions of this Section 3.20, a discounted payoff of such Mortgage Loan, unless immediately after or except as provided in Section 3.09(d), or except where Section 3.20(a)(iv) applies, and the release of such portion Rating Agencies have been notified in writing and (A) either (1) the use of the real property collateralcollateral to be released will not, in the applicable Master Servicer Servicer's or the applicable Special Servicer's, as the case may be, reasonably believes that good faith and reasonable judgment, materially and adversely affect the Serviced Net Operating Income being generated by or the use of the related Mortgaged Property, or (2) there is a corresponding principal paydown of such Mortgage Loan would remain “principally secured by in an interest in real property” within amount at least equal to, or a delivery of substitute collateral with an appraised value at least equal to, the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the appraised value of the real property continuing collateral to secure such Serviced Mortgage Loan after any restoration of such real property)be released, or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a remaining Mortgaged Property from and any substitute collateral is, in the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer Servicer's or Special Servicer's, as the case may be, good faith and reasonable judgment, adequate security for the remaining Mortgage Loan and (C) the Rating Agencies have each confirmed in writing that such release and/or substitution would not result in the downgrade, qualification or withdrawal, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value rating then assigned to any Class of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;Certificates; and
(vi) subject except to applicable law, the related Mortgage Loan Documents and extent it determines that it is required in the best interests of all Certificateholders in accordance with the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a), with respect to any Performing Specially Serviced Mortgage Loan unless all related fees and expenses are paid if such action would not be generally consistent with the Asset Status Report approved by the Borrower;Directing Certificateholder or the Certificateholders, as applicable in accordance with Section 3.21 unless it shall have proposed such action to the Directing Certificateholder in the same manner as the Asset Status Report as provided in Section 3.21(e).
(viia) in respect of any Mortgage Loan that either occurs automatically, or results from the applicable exercise of a unilateral option by the related borrower within the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage Loan in effect on the Closing Date, and (2) notwithstanding clauses (i) through (vi) above, neither the Master Servicer nor the Special Servicer shall not permit (or, in be required to oppose the case confirmation of a Performing Serviced plan in any bankruptcy or similar proceeding involving a Mortgagor if in their reasonable and good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(b) The Special Servicer shall have no liability to the Trust, the Certificateholders or any other Person if its analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20
(a) is reasonably likely to produce a greater recovery to Certificateholders on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis in good faith by the Special Servicer and the Special Servicer has complied with the Servicing Standard in ascertaining the pertinent facts. Each such determination shall be evidenced by an Officer's Certificate to such effect to be delivered by the Special Servicer to the Trustee. The Special Servicer shall include with any such Officer's Certificate the appraisals and other supporting documentation forming the basis for its conclusion.
(c) Any payment of interest, which is deferred pursuant to Section 3.20(a), shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit or that such interest may actually be capitalized.
(d) The Master Servicer and the Special Servicer each may, as a condition to its granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Master Servicer's or Special Servicer's, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Mortgage Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to it, as additional servicing compensation, a reasonable fee relating to such consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for the additional services performed in connection with such request, together with any related costs and expenses incurred by it.
(e) All modifications, waivers, amendments and other actions entered into or taken in respect of the Mortgage Loans pursuant to the preceding subsections of this Section 3.20 shall be in writing. Each of the Master Servicer and the Special Servicer shall notify the other such party and the Trustee, in writing, of any modification, waiver, amendment or other action entered into or taken in respect of any Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall deliver to the Trustee or the related Custodian for deposit in the related Mortgage File (with a copy to the other such party), an original counterpart of the agreement relating to such modification, waiver, amendment or other action, promptly (and in any event within 10 Business Days) following the execution thereof. In addition, following the execution of any modification, waiver or amendment agreed to by the Special Servicer pursuant to Section 3.20(a) above, the Special Servicer shall deliver to the Master Servicer and the Trustee an Officer's Certificate setting forth in reasonable detail the basis of the determination made by it pursuant to clause (i) of Section 3.20(a).
(f) Notwithstanding anything to the contrary contained in this Agreement, neither the Master Servicer or the Special Servicer shall consent to the applicable Master Servicer’smodification of any Credit Lease without the prior written consent of the Enhancement Insurer, to the extent the related Credit Lease Loan has a Lease Enhancement Policy, and/or the Extension Insurer, to the extent the related Credit Lease Loan has an Extended Amortization Policy.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Nationslink Funding Corp 1999-LTL-1 Commer Loan Pas THR Cer)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Except as provided in Section 3.08(a) and this Section 3.21, no Servicer shall agree to enter into, or shall enter into, any modification, waiver (other than a waiver referred to in the case Section 3.13, which waiver, if any, shall be governed by Section 3.13), forbearance or amendment of a Serviced any term of any Mortgage Loan, unless such Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Defaulted Mortgage Loan) . All modifications, waivers, forbearances or the applicable Master Servicer (in the case amendments of a Performing Serviced any Defaulted Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (shall be in writing and shall be consistent with the Customary Servicing StandardProcedures.
(b) The related Servicer may, with respect to any Defaulted Mortgage Loan, agree to any modification, waiver waiver, forbearance, or amendment of any term of, extend of such Defaulted Mortgage Loan without the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution consent of the Borrower on Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Custodian or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subjectCertificateholder; provided, however, that no Servicer shall agree to Sections 3.08enter into, 3.24or shall enter into, 3.26any modification, and/or 3.28waiver, as applicable, and, in the case forbearance or amendment of each any Defaulted Mortgage Loan in a Serviced Loan Combinationif such modification, to the rights of third parties set forth in the related Intercreditor Agreementwaiver, andforbearance, further to each of the following limitations, conditions and restrictionsor amendment would:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days thereunder; or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02such Servicer's judgment, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or reduce the applicable Special Servicer reasonably believes that there is a significant risk likelihood of such a default, andtimely payment of amounts due thereon; unless, in either case, such modification, waiver, forbearance or amendment or other action is is, in such Servicer's judgment, reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property Mortgage Loan than would liquidation. Subject to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateralapplicable Customary Servicing Procedures, the applicable Master related Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced permit a forbearance for a Mortgage Loan which such Servicer has been advised would remain “principally secured by an interest in real property” within the meaning default if such forbearance is not granted.
(c) Any payment of Section 1.860G-2(b)(7)(ii) interest, which is deferred pursuant to any modification, waiver, forbearance or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property)amendment permitted hereunder, or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Propertiesnot, for purposes of REMIC qualification hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, then notwithstanding that the terms of such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any or such modification, waiver or amendment so permit. However, interest may be capitalized in accordance with a loan modification pursuant to Section 3.21(b).
(d) The related Servicer may, to the extent permitted by applicable law or the terms of the Mortgage Loan, as a condition to granting any request by a Mortgagor for consent, modification, or amendment, the granting of which is within such Servicer's discretion pursuant to the Mortgage Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to such Servicer, as additional servicing compensation, a reasonable or customary fee for the additional services performed in connection with such request, together with any related costs and expenses incurred by such Servicer, which amount shall be retained by such Servicer as additional servicing compensation.
(e) Each Servicer shall notify the Depositor and the Master Servicer, in writing, of any modification or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees it services and expenses are paid by the Borrower;
(vii) date thereof, and shall deliver to the applicable Special Servicer shall not permit (or, Custodian for deposit in the case related Mortgage File, an original counterpart of a Performing Serviced Mortgage Loanthe agreement relating to such modification or amendment, consent promptly (and in any event within ten Business Days) following the execution thereof; provided, however, that if any such modification or amendment is required by applicable law to be recorded, such Servicer (i) shall deliver to the applicable Master Servicer’sCustodian a copy thereof and (ii) shall deliver to the Custodian such document, with evidence of notification upon receipt thereof from the public recording office, if applicable.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Mortgage Loan Trust, Series 2005-B)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a solely as to Specially Serviced Mortgage LoanLoans) or and the applicable Master Servicer (in the case of a Performing solely as to Mortgage Loans that are not Specially Serviced Mortgage Loan or Performing Serviced Pari Passu Companion LoanLoans) each may (consistent with the Accepted Master Servicing StandardPractices or Accepted Special Servicing Practices, as applicable) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default default interest and Excess Interest) on and principal of, defer or forgive late payment charges, charges and Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower Mortgagor on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, required to service and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)administer hereunder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, 4.08 and Section 11.02 and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)provided herein, the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a3.18(a) with respect to, to any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely Loan or affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material ActionLoan, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower Mortgagor request for such modification, waiver or amendment, (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, (B) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Accepted Special Servicing Standard (and subject to Section 3.24 and/or 3.26, as applicable), Practices and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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 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 decisiondecision (or, if the Special Servicer did not request any information, within fifteen (15) Business Days from such notice), such consent shall be deemed to have been granted);
(ii) other than as provided in Sections 3.024.08, 3.08 3.18(f) and 3.20(e)6.03, the applicable Special Servicer shall not agree to (or, in the case of a Performing Mortgage Loan that is not a Specially Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Mortgage Loan that is not a Specially Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's taking) any of the other acts referenced in this Section 3.20(a3.18(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable reasonable, good faith judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable reasonable, good faith judgment of the applicable Special Servicer, a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, ) on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable related Mortgage Rate), than would liquidation;
(iii) the Special Servicer but in no event less than the related Net Mortgage Rate shall not extend (or, in the case of an ARD a Mortgage Loan after its Anticipated Repayment Datethat is not a Specially Serviced Mortgage Loan, at the related Net Mortgage Rate immediately prior consent to the Anticipated Repayment Date), than would liquidation; provided that (AMaster Servicer's extending) any modification, extension, waiver or amendment of the payment terms maturity date of any related Specially Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other than in accordance with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extendSection 6.03(b);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a3.18(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in unless it has received an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions Opinion of Counsel in making that taking any such decisions)act will not adversely affect the status of REMIC I, REMIC II and REMIC III as REMICs;
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Accepted Master Servicing StandardPractices and Accepted Special Servicing Practices, as applicable, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the BorrowerMortgagor;
(viivi) the applicable Special Servicer shall not permit (or, in the case of a Performing Mortgage Loan that is not a Specially Serviced Mortgage Loan, consent to the applicable Master Servicer’s's permitting) any Mortgagor to add or substitute any real estate collateral for its Mortgage Loan unless the Special Servicer shall have first (A) determined in its reasonable, good faith judgment, based upon a Phase I environmental site assessment (and any additional environmental testing that the Special Servicer deems necessary and prudent) conducted by an Independent Person who regularly conducts Phase I environmental site assessments, at the expense of the Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws or regulations, (B) received an Opinion of Counsel that such addition or substitution would not adversely affect the status of REMIC I, REMIC II and REMIC III as REMICs and (C) with respect to any Mortgage Loan with a Stated Principal Balance equal to (1) $20,000,000 or greater, or (2) 2% or more of the current outstanding Certificate Balance (verified by the Trustee), received written confirmation from each Rating Agency that such addition or substitution of collateral will not, in and of itself, result in a qualification (if applicable), downgrade or withdrawal of the then-current ratings on the Certificates; and
(vii) the Special Servicer shall not release (or, in the case of a Mortgage Loan that is not a Specially Serviced Mortgage Loan, consent to the Master Servicer's releasing), including in connection with a substitution contemplated by clause (vi) above, any collateral securing an outstanding Mortgage Loan, except as provided in Section 6.05, or except where a Mortgage Loan (or, in the case of a Cross Collateralized Loan, where any other Mortgage Loan cross-collateralized therewith) is satisfied, or except in the case of a release where (A) either (1) the loss of the collateral to be released will not, in the good faith and reasonable judgment of the Special Servicer, materially and adversely affect the net operating income being generated by or the use of the related Mortgaged Property, or (2) there is a corresponding principal pay down of such Mortgage Loan in an amount at least equal to the appraised value of the collateral to be released (or substitute collateral with an appraised value at least equal to that of the collateral to be released, is delivered), (B) the remaining Mortgaged Property (together with any substitute collateral) is, in the Special Servicer's good faith and reasonable judgment, adequate security for the remaining Mortgage Loan, (C) received an Opinion of Counsel that such addition or substitution would not adversely affect the status of REMIC I, REMIC II and REMIC III as REMICs and (D) with respect to any Mortgage Loan with a Stated Principal Balance equal to (1) $20,000,000 or greater, or (2) 2% or more of the current outstanding Certificate Balance (verified by the Trustee), such release would not, in and of itself, result in a qualification (if applicable), downgrade or withdrawal of the then-current ratings on the Certificates (as confirmed in writing to the Trustee by each Rating Agency); provided that the limitations, conditions and restrictions set forth in clauses (i) through (vii) above shall not apply to any act or event (including, without limitation, a release, substitution or addition of collateral) in respect of any Mortgage Loan that either occurs automatically, or results from the exercise of a unilateral option by the related Mortgagor within the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage Loan in effect on the Delivery Date; and provided, further, that, notwithstanding clauses (i) through (vii) above, neither the Master Servicer nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Mortgagor if, in its reasonable, good faith judgment, such opposition would not ultimately prevent the confirmation of such plan or one substantially similar; and provided, further, that notwithstanding clause (vii) above, neither the Master Servicer nor the Special Servicer shall be required to obtain any confirmation of the Certificate ratings from the Rating Agencies in order to grant easements that do not materially affect the use or value of a Mortgaged Property or the Mortgagor's ability to make any payments with respect to the related Mortgage Loan.
(b) Neither the Master Servicer (with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans) nor the Special Servicer (with respect to Special Serviced Mortgage Loans) shall have any liability to the Trust Fund, the Certificateholders or any other Person if its analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.18
(a) is reasonably likely to produce a greater recovery to Certificateholders on a present value basis than would liquidation should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis in good faith by the Master Servicer or the Special Servicer and consistent with Accepted Master Servicing Practices or Accepted Special Servicing Practices, as applicable.
(c) Any payment of interest, which is deferred pursuant to Section 3.18(a), shall not, for purposes of calculating monthly distributions and reporting information to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit or that such interest may actually be capitalized; provided, however, that this sentence shall not limit the rights of the Master Servicer or the Special Servicer on behalf of the Trust Fund to enforce any obligations of the related Mortgagor under such Mortgage Loan.
(d) Each of the Master Servicer and the Special Servicer may, as a condition to its granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Master Servicer's or the Special Servicer's, as the case may be, discretion pursuant to the terms of the related Mortgage Loan Documents and is permitted by the terms of this Agreement, require that such Mortgagor pay to it a reasonable or customary fee (which shall in no event exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for the additional services performed in connection with such request, together with any related costs and expenses incurred by it. All such fees collected by the Master Servicer and/or the Special Servicer shall be allocable between such parties, as Additional Master Servicing Compensation and Additional Special Servicing Compensation, respectively, as provided in Sections 4.12 and 6.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Jp Morgan Chase Commercial Mortgage Securities Corp)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend forgive or defer the maturity of, defer or forgive payment of interest (including including, without limitation, Default Interest) on and principal of, defer or forgive late payment charges, charges and Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor of, of any Serviced Mortgage Loan for which it is responsiblerequired to service and administer hereunder (except that any assumption with respect to a Mortgage Loan serviced and administered by the Master Servicer must also be consented to by the Special Servicer), and respond to or approve Borrower requests for without the consent on the part of the mortgagee Trustee or any Certificateholder (including the lease reviews and lease consents related theretoexcept as provided in Section 3.21), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section 3.02 (with respect to Default Charges Charges) and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowersclauses), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), neither the applicable Master Servicer nor the Special Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially it is required to service and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan administer hereunder that would affect the amount or timing of any related payment of principal, interest or other 123 amount payable thereunder or, in the reasonable judgment of Master Servicer's or the applicable Special Servicer's good faith and reasonable judgment, would materially impair alter the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or reduce the applicable Special Servicer reasonably believes that there is a significant risk likelihood of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case timely payment of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (thereon or, to the extent consistent required by the REMIC Provisions, materially increase, substitute or otherwise alter the collateral for the Mortgage Loan (other than the alteration or construction of improvements thereon) or any guarantee or credit enhancement contract with respect thereto (other than the Servicing Standardsubstitution of a similar commercially available credit enhancement contract); provided, giving due consideration to however, the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit may agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, a Specially Serviced Mortgage Loan that would have any such effect, but only if a material default on such Mortgage Loan has occurred or, in the Special Servicer's reasonable and good faith judgment, a default in respect of payment on such Mortgage Loan is reasonably foreseeable, and such modification, waiver, amendment or other action is reasonably likely to produce a greater recovery to Certificateholders and the Certificate Insurer as subrogee of the Class A Certificateholders on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders to be performed at the related Net Mortgage Rate), than would liquidation, provided that the interest rate on any Mortgage Loan or may not be reduced below the lesser of the original Mortgage Rate of such Mortgage Loan and the highest Pass-Through Rate borne by any Certificate;
(ii) the Special Servicer may not, in connection with any particular extension, extend the maturity date of any Specially Serviced Mortgage Loan Combination beyond a date that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with is two years prior to the Grantor Trust Pool Rated Final Distribution Date, or beyond the date which is 10 years prior to the expiration date of any related Ground Lease;
(iii) unless the applicable proviso in Section 3.20(a)(i) above applies, neither the Master Servicer and nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, referenced in this Section 3.20(a) or in Section 3.08 with respect to, any Mortgage Loan not otherwise permitted by this Section 3.20(a) or in Section 3.08 that would constitute a "significant modification" of such Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b) (neither the Master Servicer nor the Special Servicer shall be liable for decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them the Master Servicer and the Special Servicer may rely on Opinions of Counsel in making such decisions);
(viv) neither the Master Servicer nor the Special Servicer shall permit any Mortgagor to add or substitute any collateral for an outstanding Mortgage Loan, which additional or substitute collateral constitutes real property, unless (A) the Special Servicer shall have first determined in accordance with the event Servicing Standard, based upon a Phase I Environmental Assessment (and such additional environmental testing as the Special Servicer deems necessary and appropriate) prepared by an Independent Person who regularly conducts Phase I Environmental Assessments (and such additional environmental testing), 124 at the expense of a taking the Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any portion of Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, then applicable environmental laws and/or regulations and (B) the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have obtained written confirmation from each Rating Agency that such substitution will not result in the Condemnation Proceeds (withdrawal, downgrade or other similar award) and the net proceeds from the receipt qualification, as applicable, of any insurance rating then assigned to any Class of Certificates;
(v) neither the Master Servicer nor the Special Servicer shall release any collateral securing an outstanding Mortgage Loan (including, without limitation, as part of a substitution of collateral), except in connection with a payment in full or tort settlement with respect a defeasance pursuant to such real property to pay down the principal balance terms of the Serviced related Mortgage Loan and this Agreement or, subject to the other provisions of this Section 3.20, a discounted payoff of such Mortgage Loan, unless immediately after or except as provided in Section 3.09(d), or except where Section 3.20(a)(iv) applies, and the release of such portion of Rating Agencies and the real property collateralCertificate Insurer have been notified in writing and (A) the remaining Mortgaged Property and any substitute collateral is, in the applicable Master Servicer Servicer's or the applicable Special Servicer's, as the case may be, reasonably believes that good faith and reasonable judgment, adequate security for the Serviced remaining Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) the Rating Agencies have each confirmed in connection with (i) writing that such release and/or substitution would not result in the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) downgrade, qualification or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicerwithdrawal, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value rating then assigned to any Class of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;Certificates; and
(vi) subject except to applicable law, the related Mortgage Loan Documents extent it determines that it is required in the best interests of all Certificateholders and the Certificate Insurer as potential or current subrogee of the Class A Certificateholders in accordance with the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a), with respect to any Performing Specially Serviced Mortgage Loan unless all related fees and expenses are paid if such action would not be generally consistent with the Asset Status Report approved by the Borrower;Directing Certificateholder or the Certificateholders, as applicable in accordance with Section 3.21 unless it shall have proposed such action to the Directing Certificateholder in the same manner as the Asset Status Report as provided in Section 3.21(e).
(viia) in respect of any Mortgage Loan that either occurs automatically, or results from the applicable exercise of a unilateral option by the related borrower within the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage Loan in effect on the Closing Date, and (2) notwithstanding clauses (i) through (vi) above, neither the Master Servicer nor the Special Servicer shall not permit (or, in be required to oppose the case confirmation of a Performing Serviced plan in any bankruptcy or similar proceeding involving a Mortgagor if in their reasonable and good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar. 125
(b) The Special Servicer shall have no liability to the Trust, the Certificateholders or any other Person if its analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20
(a) is reasonably likely to produce a greater recovery to Certificateholders on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis in good faith by the Special Servicer and the Special Servicer has complied with the Servicing Standard in ascertaining the pertinent facts. Each such determination shall be evidenced by an Officer's Certificate to such effect to be delivered by the Special Servicer to the Trustee. The Special Servicer shall include with any such Officer's Certificate the appraisals and other supporting documentation forming the basis for its conclusion.
(c) Any payment of interest, which is deferred pursuant to Section 3.20(a), shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit or that such interest may actually be capitalized.
(d) The Master Servicer and the Special Servicer each may, as a condition to its granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Master Servicer's or Special Servicer's, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Mortgage Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to it, as additional servicing compensation, a reasonable fee relating to such consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for the additional services performed in connection with such request, together with any related costs and expenses incurred by it.
(e) All modifications, waivers, amendments and other actions entered into or taken in respect of the Mortgage Loans pursuant to the preceding subsections of this Section 3.20 shall be in writing. Each of the Master Servicer and the Special Servicer shall notify the other such party and the Trustee and the Certificate Insurer, in writing, of any modification, waiver, amendment or other action entered into or taken in respect of any Mortgage Loan pursuant to this Section 3.20(a) and the date thereof, and shall deliver to the Trustee or the related Custodian for deposit in the related Mortgage File (with a copy to the other such party), an original counterpart of the agreement relating to such modification, waiver, amendment or other action, promptly (and in any event within 10 Business Days) following the execution thereof. In addition, following the execution of any modification, waiver or amendment agreed to by the Special Servicer pursuant to Section 3.20 above, the Special Servicer shall deliver to the Master Servicer, the Trustee and the Certificate Insurer an Officer's Certificate setting forth in reasonable detail the basis of the determination made by it pursuant to clause (i) of Section 3.20(a).
(f) Notwithstanding anything to the contrary contained in this Agreement, neither the Master Servicer or the Special Servicer shall consent to the applicable Master Servicer’smodification of any Credit Lease without the prior written consent of the Enhancement Insurer, to the extent the related Mortgage Loan has a Lease Enhancement Policy, and/or the Extension Insurer, to the extent the related Corporate Lease Loan has an Extended Amortization Policy and/or the Residual Value Insurer, to the extent the related Corporate Lease Loan has a Resident Value Insurance Policy and a consent is required thereunder.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Inc)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default default interest, Post-ARD Additional Interest and Value Reduction Accrued Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges Consideration on, defer the payment of interest on, or upon the Servicer’s confirmation that the conditions precedent set forth in this Section 3.20(a) or in the Mortgage Loan Documents have been satisfied, such confirmation not to be unreasonably withheld, conditioned or delayed, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower Borrowers on or any guarantor of, any Serviced the Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for grant any consent on under the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan CombinationDocuments, to the rights of third parties set forth in the related Intercreditor Agreement, and, further subject to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect provided below and to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect the extent that the Lender is able to due-on-sale and due-on-encumbrance clauses and transfers exercise discretion under the applicable provisions of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)the Mortgage Loan Documents, the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced the Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder (other than amounts that would constitute Additional Servicing Compensation), except that, subject to the conditions set forth in the Loan Agreement, the Servicer may enter into a Loan Agreement Supplement relating to a Mortgage Loan Increase or the addition of Additional Sites or Additional Borrower Sites, and the Servicer may defer or forgive the payment of interest (including default interest, Post-ARD Additional Interest and Value Reduction Accrued Interest) on and principal of the Mortgage Loan and reduce the amount of the Monthly Payment Amount, including by way of a reduction in any of the Component Rates, if (but only if) (w) the Borrowers are in material default in respect of the Mortgage Loan or, in the reasonable judgment sole discretion of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, exercised in the reasonable judgment of the applicable Special Servicergood faith, a default with in respect to of a payment on such the Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or (x) the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders the Securityholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, ) on a present value basis than would liquidation, (y) the relevant discounting modification, waiver, amendment or other action would not result in any Adverse Tax Status Event (as evidenced by an Opinion of anticipated collections that will Counsel, the cost of which shall be distributable paid as an Additional Trust Fund Expense) and (z) the Servicer has obtained the consent of the Securityholders representing not less than 90% of the Voting Rights allocated to Certificateholders the affected Classes (and, voting together as if they were a single Class) and 66 2/3% of the Voting Rights allocated to all Classes (voting together as if they were a single Class) if such amendment would result in the case forgiveness of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)any payment of principal or interest or significantly defer payment of principal or interest;
(ii) to be done at a rate determined by the applicable Special Servicer but in no event less than shall the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to Servicer extend the Anticipated Repayment Date), than would liquidation; provided that (A) Date for any modification, extension, waiver or amendment Component of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with that the Servicing Standard, giving due consideration Lender is able to exercise discretion under the remaining term applicable provisions of the related Ground Lease or Space LeaseMortgage Loan Documents, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall not make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any the Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event Tax Status Event;
(iv) the Servicer shall not permit the Borrowers to add or substitute any collateral for the Mortgage Loan other than in accordance with respect the Mortgage Loan Documents; and
(v) the Servicer shall not release any material collateral securing the Mortgage Loan, except as provided in Section 3.09(c) or except in accordance with the terms of the Mortgage Loan Documents or upon satisfaction of the Mortgage Loan; provided that (x) the limitations, conditions and restrictions set forth in clauses (i) through (v) above shall not apply to any REMIC Pool act or an Adverse Grantor Trust Event with event (including, without limitation, a release, substitution or addition of collateral) in respect with to of the Grantor Trust Pool Mortgage Loan that either occurs automatically by its terms, or results from the exercise of a unilateral option by a Borrower within the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event required under the terms of the Mortgage Loan in effect on the Closing Date or that is solely within the control of the Borrowers, and (y) notwithstanding clauses (i) through (v) above, the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Borrower if in its good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(b) The Servicer shall have no liability to the Trust, the Securityholders or any other Person if the Servicer’s analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20
(a) is reasonably likely to produce a greater recovery to Securityholders (as collective whole) on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in a reasonable basis by the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel has acted reasonably and complied with the Servicing Standard in making ascertaining the pertinent facts. Each such decisions, the costs of which determination shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property evidenced by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, an Officer’s Certificate to calculate (or approve the calculation such effect to be delivered by the related Borrower ofServicer to the Trustee.
(c) the loan-to-value ratio Any payment of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Propertiesinterest, which is deferred pursuant to Section 3.20(a), shall not, for purposes of REMIC qualification calculating monthly distributions and reporting information to Securityholders, be added to the Stated Principal Balance of the related Mortgage Loan, then such calculation notwithstanding that the terms of the value Mortgage Loan so permit or that such interest may actually be capitalized; provided, however, that this sentence shall not limit the rights of collateral will be solely based the Servicer on behalf of the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted Trust to enforce any obligations of the Borrowers under the applicable REMIC rules Mortgage Loan.
(d) The Servicer may, as evidenced a condition to its providing confirmation that the conditions precedent have been satisfied in connection with any request by an Opinion a Borrower for consent, assumption, modification, waiver or indulgence or any other matter or thing, which confirmation shall not be unreasonably withheld, conditioned or delayed, require that such Borrower pay to it for the additional services performed in connection with such request, any related processing fee, application fee and out-of-pocket costs and expenses incurred by it. All such fees collected by the Servicer shall constitute Additional Servicing Compensation as provided in Section 3.11.
(e) All modifications, waivers, amendments and other material actions entered into or taken in respect of Counsel provided the Mortgage Loan pursuant to this Section 3.20 shall be in writing. The Servicer shall notify each Rating Agency and the Trustee, in writing, of any modification, waiver, amendment or other action entered into or taken thereby in respect of the Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall deliver to the Trustee;
(vi) subject to applicable law, Trustee or the related Custodian for deposit in the Mortgage Loan Documents File, an original counterpart of the agreement relating to such modification, waiver, amendment or other action, promptly (and in any event within ten (10) Business Days) following the Servicing Standardexecution thereof. In addition, neither following the applicable Master Servicer nor the applicable Special Servicer shall permit execution of any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid agreed to by the Borrower;
(viiServicer pursuant to Section 3.20(a) above, the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent deliver to the applicable Master Servicer’sTrustee and the Rating Agencies an Officer’s Certificate certifying that all of the requirements of Section 3.20(a) have been met and setting forth in reasonable detail the basis of the determination made by it pursuant to Section 3.20(a)(i).
Appears in 1 contract
Samples: Trust and Servicing Agreement (American Tower Corp /Ma/)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, Except as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(ithis Section 3.20(a) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)3.08, the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term ofa Mortgage Loan, and, except as provided in the following paragraph and in Section 3.20(d), no Mortgage Loan that is not a Specially Serviced Mortgage Loan may be modified, waived or take any amended, provided, that the Special Servicer may agree to extend the maturity date of the other acts referenced in a Mortgage Loan that is not a Specially Serviced Mortgage Loan, provided, further, that no such extension entered into pursuant to this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing shall be for a period of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt more than twelve months from the applicable Master Servicer original maturity date 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a maturity date beyond the earlier of (Ai) five two years prior to the Rated Final Distribution Date and (Bii) if such in the case of a Mortgage Loan is secured by a Mortgage solely or primarily on leasehold estate, the related Borrower’s leasehold interest in the related Mortgaged Property, 20 date ten years (or, prior to the extent consistent expiration of such leasehold estate. If such extension would extend the Maturity Date of a Mortgage Loan for more than twelve months from and after the original maturity date of such Mortgage Loan, the Special Servicer must provide the Trustee with an opinion of counsel that such extension would not constitute a "significant modification" of the Servicing StandardMortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b). Any substitution of collateral shall be treated hereunder as a modification or amendment of the applicable Mortgage Loan. Notwithstanding the foregoing, giving due consideration the Servicer may modify or amend the terms of any Mortgage Loan without the consent of the Special Servicer in order to (i) cure any ambiguity therein or (ii) correct or supplement any provisions therein which may be inconsistent with any other provisions therein or correct any error, provided that such modification or amendment would not be a "significant modification" of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b), and provided further that the proposed modification or amendment will not cause (x) either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or (y) either the Upper-Tier REMIC or the Lower-Tier REMIC to be subject to any tax under the REMIC Provisions. Notwithstanding the foregoing, the Special Servicer shall not permit the substitution of any Mortgaged Property (or any portion thereof) pursuant to the remaining term terms of the related Ground Lease or Space Lease, ten years) prior Mortgage Loan documents unless it has received an Opinion of Counsel to the end effect that (i) such substitution will not cause the related Mortgage Loan to fail to qualify as a "qualified mortgage" for REMIC purposes, (ii) such substitution will not affect the status as a REMIC of either the Upper-Tier REMIC or the Lower-Tier REMIC, and (iii) such substitution will not subject the Trust Fund, the Upper-Tier REMIC or the Lower-Tier REMIC to any tax.
(b) If, but only if, the Special Servicer determines that a modification, waiver or amendment (including, without limitation, the forgiveness or deferral of interest or principal or the substitution of collateral pursuant to the terms of the then-current term Mortgage Loan or otherwise, the release of collateral or the pledge of additional collateral) of the terms of a Specially Serviced Mortgage Loan with respect to which a payment default or other material default has occurred or a payment default is, in the Special Servicer's judgment, reasonably foreseeable (as evidenced by an Officer's Certificate of the Special Servicer), is reasonably likely to produce a greater recovery on a present value basis (the relevant discounting to be performed at the related Ground Lease or Space Lease (plus any unilateral options to extend);
(ivMortgage Rate) neither than liquidation of such Specially Serviced Mortgage Loan, then the applicable Master Servicer nor the applicable Special Servicer shall make may, but is not required to, with the approval or permit any deemed approval of the Extension Adviser, in the case of an extension of the maturity of a Specially Serviced Mortgage Loan beyond the third anniversary of such Mortgage Loan's original maturity date, agree to a modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Specially Serviced Mortgage Loan, unless immediately after subject to the release provisions of such portion of this Section 3.20(b) and Section 3.20(c). The Special Servicer shall use its best efforts to the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the extent possible to cause each Specially Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided fully amortize prior to the Trustee;
(vi) subject Rated Final Distribution Date and shall not agree to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any a modification, waiver or amendment of any term of any Performing Specially Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;if such modification, waiver or amendment would:
(viii) extend the maturity date of any such Specially Serviced Mortgage Loan to a date occurring later than the earlier of (a) two years prior to the Rated Final Distribution Date and (b) if such Specially Serviced Mortgage Loan is secured by a leasehold estate, the date occurring ten years prior to the expiration of such leasehold; or
(ii) reduce the related Net Mortgage Rate on any such Specially Serviced Mortgage Loan to less than the lesser of (a) the applicable Special Servicer shall original Net Mortgage Rate and (b) ___% per annum; or
(iii) provide for the deferral of interest unless (a) interest accrues thereon, generally, at the related Mortgage Rate and (b) the aggregate amount of such deferred interest does not permit (or, in exceed 10% of the case unpaid principal balance of a Performing the Specially Serviced Mortgage Loan, consent .
(c) Any provision of this Section 3.20 to the applicable Master Servicer’scontrary notwithstanding, no fee described in this paragraph shall be collected by any Servicer or Special Servicer from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent or any modification, waiver or amendment of a Mortgage Loan (unless the amount thereof is specified in the related Mortgage Note) if the collection of such fee would cause such consent, modification, waiver or amendment to be a "significant modification" of the Mortgage Note within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) Notwithstanding anything to the contrary in this Agreement, the Special Servicer may agree to any waiver, modification or amendment of a Mortgage Loan that is not in default or as to which default is not reasonably foreseeable only to the extent that it would not be a "significant modification" of the Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b), provided that the proposed modification, amendment or waiver will not cause (x) either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Chase Commercial Mortgage Securities Corp)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) each may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges capitalize interest on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor of, of any Serviced Mortgage Loan for which it is responsiblerequired to service and administer hereunder, and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Trustee or any Certificateholder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section Sections 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)3.08, the applicable Master Servicer (in such capacity) shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (xA) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loanthereunder, (yB) affect the obligation of the related Mortgagor to pay any Prepayment Premium or permit a Principal Prepayment during any period when the terms of the Mortgage Loan prohibit the making of Principal Prepayments or, (C) in the Master Servicer's good faith and reasonable judgment, materially and adversely affect impair the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in reduce the case likelihood of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) timely payment of amounts due thereon; the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (Ain such capacity) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modificationmay, waiver or amendmenthowever, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any a Specially Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of have any related payment of principalsuch effect, interest or other amount payable thereunder orbut only if, in the reasonable judgment of the applicable Special Servicer's reasonable and good faith judgment, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, or a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date)basis, than would liquidation; provided that ;
(Aii) any modification, extension, waiver or amendment of such action taken by the payment terms of any related Serviced Loan Combination Special Servicer shall be structured in accompanied by an Officer's Certificate to such effect and to which is attached the present value calculation which establishes the basis for such determination, a manner so as to copy of which shall be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) delivered to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior Trustee for delivery to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion LoanRating Agencies;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on Stated Maturity Date of any Mortgage Loan to a date beyond the earlier of (A) five date that is two years prior to the Rated Final Distribution Date and (B) if such and, in the case of any Mortgage Loan that is secured solely by a Mortgage solely Ground Lease, the Master Servicer or primarily on the related Borrower’s leasehold interest in Special Servicer, as the related Mortgaged Propertycase may be, 20 years (or, to the extent consistent with the Servicing Standard, giving shall give due consideration to the remaining term of the related such Ground Lease or Space Lease, ten years) prior to extending the end Stated Maturity Date of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend)Mortgage Loan;
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) or clause (h) of Section 3.19 with respect to, any Mortgage Loan or Serviced Loan Combination that would (A) cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC under the Code or (subject 115 to Section 10.01(f)) result in an Adverse the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day of any such REMIC Event with respect under the REMIC Provisions or (B) cause any Mortgage Loan to any REMIC Pool or an Adverse Grantor Trust Event with respect with cease to be a "qualified mortgage" within the Grantor Trust Pool meaning of Section 860G(a)(3) of the Code (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for judgments as regards decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them the Master Servicer and the Special Servicer may rely on Opinions opinions of Counsel counsel in making such decisions);
(v) (A) in neither the event of a taking of Master Servicer nor the Special Servicer shall permit any portion of Mortgagor to add or substitute any real property collateral securing for an outstanding Serviced Mortgage Loan by a stateLoan, political subdivision or authority thereofwhich collateral constitutes real property, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, unless the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have first determined, in its reasonable and good faith judgment, based upon an Environmental Assessment performed within the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect twelve months prior to such real property to pay down determination (and such additional environmental testing as the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes deems necessary and appropriate) prepared by an Independent Person who regularly conducts Environmental Assessments (and such additional environmental testing), at the expense of the Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the Serviced use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws and/or regulations; and
(vi) neither the Master Servicer nor the Special Servicer shall release or substitute any collateral securing an outstanding Mortgage Loan would remain “principally secured by an interest except as provided in real property” within Sections 3.08 and 3.09(d) and except in the meaning case of Section 1.860G-2(b)(7)(iia release where (A) or (iii) the use of the Treasury Regulations (taking into account collateral to be released will not, in the value Master Servicer's or Special Servicer's, as the case may be, good faith and reasonable judgment, materially and adversely affect the Net Operating Income being generated by or the use of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property)related Mortgaged Property, or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) there is a corresponding principal paydown of such Mortgage Loan in connection an amount at least equal to, or a delivery of substitute collateral with an Appraised Value at least equal to, the Appraised Value of the collateral to be released, (iC) the release of any portion of a remaining Mortgaged Property from and any substitute collateral is, in the lien of Master Servicer's or Special Servicer's, as the related case may be, good faith and reasonable judgment, adequate security for the remaining Mortgage Loan and (other than in connection with a defeasance) or (iiD) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, has received Rating Agency Confirmation with respect to calculate such release or substitution; provided that (x) the limitations, conditions and restrictions set forth in clauses (i) through (vi) above shall not apply to any modification of any term of any Mortgage Loan or approve any other acts referenced in this Section 3.20(a) that is required under the calculation terms of such Mortgage Loan in effect on the Closing Date and that is solely within the control of the related Mortgagor, and (y) notwithstanding clauses (i) through (vi) above, neither the Master Servicer nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Mortgagor if in their reasonable and good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar. Neither the Master Servicer nor the Special Servicer may 116 extend the Maturity Date on any Mortgage Loan except pursuant to this Section 3.20(a) or as otherwise required under the related loan documents.
(b) Neither the Master Servicer nor the Special Servicer shall have any liability to the Trust Fund, the Certificateholders or any other Person if its analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20
(a) is reasonably likely to produce a greater recovery to Certificateholders on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis in good faith by the related Borrower ofMaster Servicer or Special Servicer and the Master Servicer or Special Servicer was not negligent in ascertaining the pertinent facts.
(c) the loan-to-value ratio Any payment of the remaining Mortgaged Property interest, which is deferred pursuant to any modification, waiver or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Propertiesamendment permitted hereunder, shall not, for purposes of REMIC qualification hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, then notwithstanding that the terms of such calculation Mortgage Loan or such modification, waiver or amendment so permit.
(d) The Master Servicer and, with respect to a Specially Serviced Mortgaged Loan, the Special Servicer each may, as a condition to its granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Master Servicer's or the Special Servicer's discretion pursuant to the terms of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, instruments evidencing or securing the related Mortgage Loan Documents and is permitted by the terms of this Agreement, require that such Mortgagor pay to it, as additional servicing compensation, a reasonable or customary fee (not to exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for the additional services performed in connection with such request, together with any related costs and expenses incurred by it.
(e) Except for waivers of Penalty Charges and notice periods, all material modifications, waivers and amendments of the Mortgage Loans entered into pursuant to this Section 3.20 shall be in writing.
(f) Each of the Master Servicer and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit notify the Trustee and such other party, in writing, of any modification, waiver (other than a waiver of Penalty Charges) or amendment of any term of any Performing Serviced Mortgage Loan unless all and the date thereof, and shall deliver to the Trustee or the related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, Custodian for deposit in the case related Mortgage File, an original counterpart of a Performing Serviced Mortgage Loanthe agreement relating to such modification, consent to waiver or amendment, promptly (and in any event within 10 Business Days) following the applicable Master Servicer’sexecution thereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend forgive or defer the maturity of, defer or forgive payment of interest (including including, without limitation, Default Interest) on and principal of, defer or forgive late payment charges, charges and Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor of, of any Serviced Mortgage Loan for which it is responsiblerequired to service and administer hereunder (except that any assumption with respect to a Mortgage Loan serviced and administered by the Master Servicer must also be consented to by the Special Servicer), and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Trustee or any Certificateholder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section 3.02 (with respect to Default Charges Charges) and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowersclauses), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), neither the applicable Master Servicer nor the Special Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially it is required to service and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan administer hereunder that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of Master Servicer's or the applicable Special Servicer's good faith and reasonable judgment, would materially impair alter the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or reduce the applicable Special Servicer reasonably believes that there is a significant risk likelihood of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case timely payment of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (thereon or, to the extent consistent required by the REMIC Provisions, materially increase, substitute or otherwise alter the collateral for the Mortgage Loan (other than the alteration or construction of improvements thereon) or any guarantee or credit enhancement contract with respect thereto (other than the Servicing Standardsubstitution of a similar commercially available credit enhancement contract); provided, giving due consideration to however, the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit may agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, a Specially Serviced Mortgage Loan that would have any such effect, but only if a material default on such Mortgage Loan has occurred or, in the Special Servicer's reasonable and good faith judgment, a default in respect of payment on such Mortgage Loan is reasonably foreseeable, and such modification, waiver, amendment or other action is reasonably likely to produce a greater recovery to Certificateholders (as a collective whole) on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders to be performed at the related Net Mortgage Rate), than would liquidation;
(ii) the Special Servicer may not, in connection with any particular extension, extend the maturity date of any Specially Serviced Mortgage Loan beyond August 20, 2028, or beyond the date which is 10 years prior to the expiration date of any related Ground Lease;
(iii) unless the proviso in Section 3.20(a)(i) above applies, neither the Master Servicer nor the Special Servicer shall make or permit any modification, waiver or amendment of any term of, referenced in this Section 3.20(a) or in Section 3.08 with respect to, any Mortgage Loan not otherwise permitted by this Section 3.20(a) or Serviced Loan Combination in Section 3.08 that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to constitute a "significant modification" of such Mortgage Loan within the Grantor Trust Pool meaning of Treasury Regulations Section 1.860G-2(b) (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them the Master Servicer and the Special Servicer may rely on Opinions of Counsel in making such decisions);
(viv) neither the Master Servicer nor the Special Servicer shall permit any Mortgagor to add or substitute any collateral for an outstanding Mortgage Loan, which additional or substitute collateral constitutes real property, unless (A) the Special Servicer shall have first determined in accordance with the Servicing Standard, based upon a Phase I Environmental Assessment (and such additional environmental testing as the Special Servicer deems necessary and appropriate) prepared by an Independent Person who regularly conducts Phase I Environmental Assessments (and such additional environmental testing), at the expense of the Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws and/or regulations and (B) in the event case of a taking substitutions of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceedingonly, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have obtained written confirmation from each Rating Agency that such substitution will not result in the Condemnation Proceeds (withdrawal, downgrade or other similar award) and the net proceeds from the receipt qualification of any insurance rating then assigned to any Class of Certificates;
(v) neither the Master Servicer nor the Special Servicer shall release any collateral securing an outstanding Mortgage Loan (including, without limitation, as part of a substitution of collateral), except in connection with a payment in full or tort settlement with respect a defeasance pursuant to such real property to pay down the principal balance terms of the Serviced related Mortgage Loan or, subject to the other provisions of this Section 3.20, a discounted payoff of such Mortgage Loan, unless immediately after or except as provided in Section 3.09(d), or except where Section 3.20(a)(iii) applies and the release of such portion Rating Agencies have been notified in writing and (A) either (1) the use of the real property collateralcollateral to be released will not, in the applicable Master Servicer Servicer's or the applicable Special Servicer's, as the case may be, reasonably believes that good faith and reasonable judgment, materially and adversely affect the Serviced Net Operating Income being generated by or the use of the related Mortgaged Property, or (2) there is a corresponding principal paydown of such Mortgage Loan would remain “principally secured by in an interest in real property” within amount at least equal to, or a delivery of substitute collateral with an appraised value at least equal to, the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the appraised value of the real property continuing collateral to secure such Serviced Mortgage Loan after any restoration of such real property)be released, or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a remaining Mortgaged Property from and any substitute collateral is, in the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer Servicer's or Special Servicer's, as the case may be, good faith and reasonable judgment, adequate security for the remaining Mortgage Loan and (C) if the collateral that is being released has an Appraised Value in excess of $3,000,000, or if any substitution of collateral is to be made, the Rating Agencies have each confirmed in writing that such release and/or substitution would not result in the downgrade, qualification or withdrawal of the rating then assigned by Xxxxx'x and/or S&P, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio any Class of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;Certificates; and
(vi) subject to applicable lawwithout the consent of the Directing Certificateholder, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a), with respect to any Performing Specially Serviced Mortgage Loan unless all related fees and expenses are paid if such act would not be generally consistent with the Asset Status Report approved by the Borrower;Directing Certificateholder or the Certificateholders, as applicable in accordance with Section 3.21.
(viia) in respect of any Mortgage Loan that either occurs automatically, or results from the applicable exercise of a unilateral option by the related borrower within the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage Loan in effect on the Original Closing Date, and (2) notwithstanding clauses (i) through (vi) above, neither the Master Servicer nor the Special Servicer shall not permit (or, in be required to oppose the case confirmation of a Performing Serviced plan in any bankruptcy or similar proceeding involving a Mortgagor if in their reasonable and good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(b) The Special Servicer shall have no liability to the Trust, the Certificateholders or any other Person if its analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20
(a) is reasonably likely to produce a greater recovery to Certificateholders on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis in good faith by the Special Servicer and the Special Servicer has complied with the Servicing Standard in ascertaining the pertinent facts. Each such determination shall be evidenced by an Officer's Certificate to such effect to be delivered by the Special Servicer to the Trustee. The Special Servicer shall include with any such Officer's Certificate the appraisals and other supporting documentation forming the basis for its conclusion.
(c) Any payment of interest, which is deferred pursuant to Section 3.20(a), shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, consent notwithstanding that the terms of such Mortgage Loan so permit or that such interest may actually be capitalized.
(d) The Master Servicer and the Special Servicer each may, as a condition to its granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Master Servicer's or Special Servicer's, as the case may be, discretion pursuant to the applicable terms of the instruments evidencing or securing the related Mortgage Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to it, as additional servicing compensation, a reasonable fee relating to such consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for the additional services performed in connection with such request, together with any related costs and expenses incurred by it.
(e) All modifications, waivers, amendments and other actions entered into or taken in respect of the Mortgage Loans pursuant to the preceding subsections of this Section 3.20 shall be in writing. Each of the Master Servicer’sServicer and the Special Servicer shall notify the other such party and the Trustee, in writing, of any modification, waiver, amendment or other action entered into or taken in respect of any Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall deliver to the Trustee or the related Custodian for deposit in the related Mortgage File (with a copy to the other such party), an original counterpart of the agreement relating to such modification, waiver, amendment or other action, promptly (and in any event within 10 Business Days) following the execution thereof. In addition, following the execution of any modification, waiver or amendment agreed to by the Special Servicer pursuant to Section 3.20(a) above, the Special Servicer shall deliver to the Master Servicer and the Trustee an Officer's Certificate setting forth in reasonable detail the basis of the determination made by it pursuant to clause (i) of Section 3.20(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-2)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Penalty Interest, 500 Xxxxxx Town Center Deferred Interest and Additional Post-ARD Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower Mortgagor on or any guarantor of, any Serviced Mortgage Loan, and/or provide consents with respect to any leasing activity at a Mortgaged Property securing any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including Trustee or any Certificateholder; provided, that the lease reviews and lease consents related thereto), subject, however, Special Servicer's right to Sections do so shall be subject to Section 3.08, 3.24, 3.26, and/or 3.28, as applicable, Section 3.28 and Section 6.11 (and, in the case of each Mortgage Loan in a Serviced Loan Combination, subject to the rights terms of third parties set forth in the related Intercreditor Loan Combination Co-Lender Agreement, ) and, further further, to each the following subsections of this Section 3.20.
(b) All modifications, waivers or amendments of any Serviced Mortgage Loan shall be in writing and shall be considered and effected in accordance with the Servicing Standard. Neither of the following limitationsMaster Servicers nor the Special Servicer, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest)applicable, Section 3.07 (insurance)shall make or permit or consent to, Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers)as applicable, Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would result in an Adverse REMIC Event. Either Master Servicer or the Special Servicer shall determine and may conclusively rely on an Opinion of Counsel (xwhich Opinion of Counsel shall be an expense of the Trust Fund to the extent not paid by the related Mortgagor) to the effect that such modification, waiver or amendment would not (1) effect an exchange or reissuance of the Serviced Mortgage Loan under Treasury Regulations Section 1.860G-2(b) of the Code, (2) cause any REMIC Pool to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions, or (3) adversely affect the status of any Grantor Trust Pool under the Code.
(c) The Special Servicer, on behalf of the Trust Fund, may agree or consent to (or permit either Master Servicer to agree or consent to) any modification, waiver or amendment of any term of any Serviced Mortgage Loan that would:
(i) affect the amount or timing of any related payment of principal, interest or other amount (including Prepayment Premiums or Yield Maintenance Charges, but excluding Penalty Interest and amounts payable under such Mortgage Loanas additional servicing compensation) payable thereunder- (including, (y) materially and adversely affect subject to the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely discussion in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of following paragraph, any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicablerelated Balloon Payment), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days ; or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided affect the obligation of the related Mortgagor to pay a Prepayment Premium or Yield Maintenance Charge or permit a Principal Prepayment during any period in Sections 3.02, 3.08 and 3.20(e), which the applicable Special Servicer shall not agree to related Mortgage Note prohibits Principal Prepayments; or
(or, iii) in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless Loan or reduce the likelihood of timely payment of amounts due thereon; only if (A) a material default on such the Serviced Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer's judgment, a material default with respect to payment on such the Serviced Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or and (B) the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to the Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Non-Trust Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date)basis, than would liquidation; provided that (A) any modification. In addition, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) subject to the extent consistent with third paragraph of this Section 3.20(c), the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on any in respect of a Specially Serviced Mortgage Loan if the conditions set forth in the proviso to the prior paragraph are satisfied and the Special Servicer has obtained an Appraisal of the related Mortgaged Property in connection with such extension, which Appraisal supports the determination of the Special Servicer contemplated by clause (B) of the proviso to the immediately preceding paragraph. In no event will either Master Servicer or the Special Servicer (i) extend the maturity date of a Serviced Mortgage Loan beyond a date beyond the earlier of (A) five that is two years prior to the Rated Final Distribution Date and (Bii) if such the Serviced Mortgage Loan is secured by a Ground Lease (and not by the corresponding fee simple interest), extend the maturity date of such Serviced Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, Loan beyond a date which is less than 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten and with the consent of the Controlling Class Representative, 10 years) prior to the expiration of the term of such Ground Lease including any unilateral options to extend such term. The determination of the Special Servicer contemplated by clause (B) of the proviso to the first paragraph of this Section 3.20(c) shall be evidenced by an Officer's Certificate to such effect delivered to the Trustee, the applicable Master Servicer and, in the case of a Serviced Loan Combination, the related Non-Trust Loan Holder(s) and describing in reasonable detail the basis for the Special Servicer's determination. The Special Servicer shall append to such Officer's Certificate any information including but not limited to income and expense statements, rent rolls, property inspection reports and appraisals that support such determination.
(d) Except as expressly contemplated by the related Mortgage Loan documents, the Special Servicer shall not consent to either Master Servicer releasing, which consent shall be deemed given if not denied in writing within 10 Business Days (or, if the Controlling Class Representative or any applicable Loan Combination Controlling Party is entitled to object pursuant to Section 3.28 or Section 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), any real property collateral securing an outstanding Serviced Mortgage Loan, except as provided in Section 3.09 or 3.20(e), or except in connection with a permitted defeasance, or except where a Serviced Mortgage Loan (or, in the case of a Crossed Loan Group, where such entire Crossed Loan Group) is satisfied, or except in the case of a release of real property collateral provided the Rating Agencies have been notified in writing and, with respect to a Serviced Mortgage Loan that is not a Specially Serviced Mortgage Loan, (A) either (1) such release will not, in the reasonable judgment of the Special Servicer (exercised in accordance with the Servicing Standard), materially and adversely affect the net operating income being generated by or the then-current term use of the related Mortgaged Property, or (2) there is a corresponding principal pay down of such Serviced Mortgage Loan in an amount at least equal to the Appraised Value of the collateral to be released (or substitute real property collateral with an Appraised Value at least equal to that of the collateral to be released, is delivered), (B) the release does not materially adversely affect the adequacy of the remaining Mortgaged Property (together with any substitute real property collateral), in the reasonable judgment of the Special Servicer (exercised in accordance with the Servicing Standard), as security for the Serviced Mortgage Loan and (C) if the real property collateral to be released has an Appraised Value in excess of $1,500,000, such release would not, in and of itself, result in an Adverse Rating Event (as confirmed in writing to the Trustee by each Rating Agency).
(e) Notwithstanding anything in this Section 3.20, Section 3.28, if applicable, and Section 6.11 to the contrary, neither Master Servicer shall be required to seek the consent of, or provide prior notice to, the Special Servicer, any Certificateholder or the Controlling Class Representative or obtain any confirmation from the Rating Agencies that an Adverse Rating Event would not occur in order to approve the following modifications, waivers or amendments of the Serviced Mortgage Loans (but, in the case of the actions described in clauses (iii) and (iv) of this sentence either such Master Servicer, shall notify the Controlling Class Representative thereof):
(i) approving routine leasing activity with respect to any lease for less than the lesser of (A) 15,000 square feet and (B) 20% of the related Mortgaged Property; provided that (1) no subordination, non disturbance and attornment agreement (an "SNDA") exists with respect to such lease and (2) no such lease is a Ground Lease Lease; and provided further that, the Master Servicer shall not grant or Space Lease approve (plus but shall forward to the Special Servicer for its approval) any unilateral options request for (or any waiver, consent, approval, amendment or modification in connection with) an SNDA or approval of a lease that contains an SNDA;
(ii) approving any waiver affecting the timing of receipt of financial statements from any Mortgagor; provided that such financial statements are delivered no less than quarterly and within 60 days of the end of the calendar quarter;
(iii) approving annual budgets for the related Mortgaged Property; provided that no such budget (A) provides for the payment of operating expenses in an amount equal to extendmore than 110% of the amounts budgeted therefor for the prior year or (B) provides for the payment of any material expenses to any affiliate of the Mortgagor (other than the payment of a management fee to any property manager if such management fee is no more than the management fee in effect on the Cut off Date);
(iv) neither subject to other restrictions herein regarding Principal Prepayments, waiving any provision of a Serviced Mortgage Loan requiring a specified number of days notice prior to a Principal Prepayment;
(v) approving modifications, consents or waivers (other than those set forth in Section 3.20(c)) in connection with a defeasance permitted by the applicable Master Servicer nor terms of the applicable Special Servicer shall make related Serviced Mortgage Loan in accordance with the provisions of Section 3.20(i) of this Agreement;
(vi) approving consents with respect to non-material right of ways and non-material easements and consent to subordination of the related Serviced Mortgage Loan to such non-material rights of way or permit easements; and
(vii) any non-material modifications, waivers or amendments not provided for in clauses (i) through (vi) above that are necessary to cure any ambiguities or to correct scrivener's errors in the terms of the related Mortgage Loan documents; provided that any such modification, waiver or amendment of any term ofamendment, or take agreeing to any such modification, waiver or amendment, (w) would not in any way affect a payment term of the other acts referenced in this Section 3.20(aCertificates, (x) with respect to, any would not constitute a "significant modification" of such Serviced Mortgage Loan or Serviced Loan Combination that pursuant to Treasury Regulations Section 1.860G 2(b) and would result in not otherwise constitute an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool E, (y) would be consistent with the applicable Master Servicer Servicing Standard, and the applicable Special Servicer (z) shall not be liable violate the other terms, provisions or limitations of this Agreement. Notwithstanding any provision of this Agreement, any request for decisions made under this subsection which were made in good faith and each the release or disbursement of them may rely on Opinions earnouts, holdbacks or letters of Counsel in making such decisions);
(v) (A) in the event of a taking of credit with respect to any portion of any real property collateral securing an outstanding Serviced Mortgage Loan set forth on Schedule VII or any Specially Serviced Mortgage Loan received by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation either Master Servicer shall be forwarded to the Special Servicer for processing. For purposes of such condemnation or other similar legal proceedingthe foregoing sentence, the applicable Master Servicer release or disbursement of earnouts and holdbacks shall mean the disbursement or funding to a Mortgagor of previously unfunded, escrowed or otherwise reserved portions of the loan proceeds of the related Mortgage Loan until certain conditions precedent thereto relating to the satisfaction of performance related criteria (i.e., project reserve thresholds, lease-up requirements, sales requirements, etc.) as set forth in the applicable Special ServicerMortgage Loan documents.
(f) Any payment of interest that is deferred pursuant to any modification, as the case may bewaiver or amendment permitted hereunder, shall apply not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the unpaid principal balance or Stated Principal Balance of the related Serviced Mortgage Loan, unless immediately after notwithstanding that the release terms of such portion of modification, waiver or amendment so permit. The foregoing shall in no way limit the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing 's ability to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer charge and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property collect from the lien Mortgagor costs otherwise collectible under the terms of the related Mortgage Note and this Agreement together with interest thereon.
(g) The Special Servicer or either Master Servicer may, as a condition to granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other than matter or thing, the granting of which is within its discretion pursuant to the terms of the instruments evidencing or securing the related Serviced Mortgage Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to it (i) as additional servicing compensation, a reasonable or customary fee for the additional services performed in connection with such request, provided such fee would not itself be a defeasance"significant modification" pursuant to Treasury Regulations Section 1.1001-3(e)(2) or and (ii) any related costs and expenses incurred by it. In no event shall the taking of any portion Special Servicer be entitled to payment for such fees or expenses unless such payment is collected from the related Mortgagor.
(h) The Master Servicers and the Special Servicer shall notify each other, the Trustee, the Controlling Class Representative and, in the case of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Serviced Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable lawCombination, the related Mortgage Non-Trust Loan Documents and the Servicing StandardHolder(s), neither the applicable Master Servicer nor the applicable Special Servicer shall permit in writing, of any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all (including fees charged the Mortgagor) and the date thereof, and shall deliver to the Custodian for deposit in the related fees and expenses are paid by the Borrower;
Mortgage File, (vii) the applicable Special Servicer shall not permit (or, in the case of the Special Servicer, with a Performing Serviced Mortgage Loan, consent copy to the applicable Master Servicer’s), an original counterpart of the agreement relating to such modification, waiver or amendment, promptly (and in any event within 10 Business Days) following the execution
Appears in 1 contract
Samples: Pooling and Servicing Agreement (ML-CFC Commercial Mortgage Trust 2007-9)
Modifications, Waivers, Amendments and Consents. (a) The applicable Subject to Sections 3.20(b) through 3.20(g) below and further subject to Section 6.11, the Special Servicer (in may, on behalf of the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) Trustee, agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible(including, and respond subject to or approve Borrower requests for consent on the part of the mortgagee (including Section 3.20(i), the lease reviews and lease consents related thereto)) without the consent of the Trustee or any Certificateholder.
(b) All modifications, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case waivers or amendments of each any Mortgage Loan in a Serviced Loan Combination(including, subject to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters3.20(i), the applicable Master Servicer lease reviews and lease consents related thereto) shall be in writing and shall be considered and effected in accordance with the Servicing Standard.
(c) Except as provided in 3.20(d) and the last sentence of Section 3.02(a), the Special Servicer, on behalf of the Trustee, shall not agree or consent to any modification, waiver or amendment of any term of, or take of any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would would:
(xi) affect the amount or timing of any related payment of principal, interest or other amount (including Prepayment Premiums or Yield Maintenance Charges, but excluding Penalty Interest and amounts payable under such Mortgage Loan, (yas additional servicing compensation) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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 grantedpayable thereunder;
(ii) other than affect the obligation of the related Mortgagor to pay a Prepayment Premium or Yield Maintenance Charge or permit a Principal Prepayment during any period in which the related Mortgage Note prohibits Principal Prepayments;
(iii) except as provided in Sections 3.02, 3.08 and 3.20(eexpressly contemplated by the related Mortgage or pursuant to Section 3.09(d), result in a release of the applicable lien of the Mortgage on any material portion of the related Mortgaged Property without a corresponding Principal Prepayment in an amount not less than the fair market value (as determined by an appraisal by an Independent Appraiser delivered to the Special Servicer shall not agree at the expense of the related Mortgagor and upon which the Special Servicer may conclusively rely) of the property to be released;
(oriv) permit the transfer or transfers of equity interests in the borrower or any equity owner of the borrower that is required to be a special purpose entity that would result, in the case aggregate during the term of a Performing Serviced the related Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent in a transfer greater than 49% of the total interest in the borrower and/or any equity owner of the borrower that is required to be a special purpose entity without the prior written confirmation from each Rating Agency that such changes will not result in the qualification, downgrade or withdrawal to the applicable Master Servicer’s agreeing toratings then assigned to the Certificates;
(v) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loanreasonable, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable good faith judgment of the applicable Special Servicer, would otherwise materially impair the security for such Mortgage Loan or reduce the likelihood of timely payment of amounts due thereon; or 108
(vi) impair the value or enforceability of a Lease Enhancement Policy or RVI Policy.
(d) Notwithstanding Section 3.20(c), but subject to the third paragraph of this Section 3.20(d) and the rights of the Controlling Class Representative set forth in Section 6.11, the Special Servicer may (i) reduce the amounts owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued interest or any Prepayment Premium or Yield Maintenance Charge, (ii) reduce the amount of the monthly payment on any Specially Serviced Mortgage Loan, unless including by way of a material default on such reduction in the related Mortgage Rate, (iii) forbear in the enforcement of any right granted under any Mortgage Note or Mortgage relating to a Specially Serviced Mortgage Loan has occurred or (iv) accept a Principal Prepayment on any Specially Serviced Mortgage Loan during any Lockout Period; provided that (A) the related Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or, in the reasonable reasonable, good faith judgment of the applicable Special Servicer, a such default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or (B) in the applicable reasonable, good faith judgment of the Special Servicer reasonably believes that there is a significant risk of such a default, and, in either caseServicer, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater modification would increase the recovery on the Mortgage Loan to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a net present value basis (the relevant discounting of anticipated collections amounts that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, performed at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that Rate) and (AC) any such modification, extension, waiver or amendment would not both (1) effect an exchange or reissuance of the payment terms Mortgage Loan under Section 1001 of the Code (and the Treasury regulations promulgated thereunder) and (2) cause REMIC I, REMIC II, REMIC III or REMIC IV (if any) to fail to qualify as a REMIC under the Code or result in the imposition of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with tax on "prohibited transactions" or "contributions" after the allocation and payment priorities set forth in Startup Day under the related Mortgage Loan DocumentsREMIC Provisions. In addition, including the related Intercreditor Agreementnotwithstanding Section 3.20(c), it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) but subject to the extent consistent with third paragraph of this Section 3.20(d), the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on any in respect of a Specially Serviced Mortgage Loan if the conditions set forth in the proviso to the prior paragraph are satisfied and the Special Servicer has obtained an appraisal in accordance with the standards of the Appraisal Institute of the related Mortgaged Property, performed by an Independent Appraiser, in connection with such extension, which appraisal supports the determination of the Special Servicer contemplated by clause (B) of the proviso to the immediately preceding paragraph and if such Balloon Loan is an Insured Balloon Loan, that such extension will not impair the value or enforceability of the related RVI Policy. In no event will the Special Servicer (i) extend the maturity date of a Mortgage Loan beyond a date beyond the earlier of (A) five that is two years prior to the Rated Final Distribution Date, (ii) extend the maturity date of any Mortgage Loan which has a Mortgage Rate below the prevailing interest rate for comparable loans at the time of such modification as determined by the Special Servicer, unless (A) such Mortgage Loan is a Balloon Loan, (B) the related Mortgagor has failed to make the Balloon Payment at its Stated Maturity Date and (BC) such Balloon Loan is not a Specially Serviced Mortgage Loan (other than by reason of the failure to make its Balloon Payment) and has not been delinquent with respect to a Periodic Payment (other than the Balloon Payment) in the preceding twelve months, in which case the Special Servicer may permit up to three one-year extensions at the existing Mortgage Rate for such Mortgage Loan 109 (provided that such limitation of extensions made at below market rate shall not limit the ability of the Special Servicer to extend the maturity date of any Mortgage Loan at an interest rate at or in excess to the prevailing rate for comparable loans at the time of such modification), (iii) if such the Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease(and not by the corresponding fee simple interest), ten years) extend the maturity date of such Mortgage Loan beyond a date which is less than 10 years prior to the end expiration of the then-current term of the related such Ground Lease or Space Lease (plus any unilateral options to extend);
Lease; (iv) neither reduce the applicable Mortgage Rate to a rate below the prevailing interest rate for comparable loans at the time of such modification, as determined by the Special Servicer; or (v) defer interest due on any Mortgage Loan in excess of 10% of the Stated Principal Balance of such Mortgage Loan or defer the collection of interest on any Mortgage Loan without accruing interest on such deferred interest at a rate at least equal to the Mortgage Rate of such Mortgage Loan. The determination of the Special Servicer contemplated by clause (B) of the proviso to the first paragraph of this Section 3.20(d) shall be evidenced by an Officer's Certificate to such effect delivered to the Trustee and the Master Servicer nor and describing in reasonable detail the applicable basis for the Special Servicer's determination. The Special Servicer shall make or permit append to such Officer's Certificate any information including but not limited to income and expense statements, rent rolls, property inspection reports and appraisals that support such determination.
(e) Any payment of interest that is deferred pursuant to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may bepermitted hereunder, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Propertiesnot, for purposes of REMIC qualification hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, then notwithstanding that the terms of such calculation modification, waiver or amendment so permit. The foregoing shall in no way limit the Special Servicer's ability to charge and collect from the Mortgagor costs otherwise collectible under the terms of the value related Mortgage Note and this Agreement together with interest thereon.
(f) The Special Servicer or, with respect to clause (i) below, the Master Servicer may, as a condition to granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided which is within its discretion pursuant to the Trustee;
(vi) subject to applicable law, terms of the instruments evidencing or securing the related Mortgage Loan Documents and is permitted by the Servicing Standardterms of this Agreement, neither require that such Mortgagor pay to it (i) as additional servicing compensation, a reasonable or customary fee for the applicable Master additional services performed in connection with such request, and (ii) any related costs and expenses incurred by it. In no event shall the Special Servicer nor be entitled to payment for such fees or expenses unless such payment is collected from the applicable related Mortgagor.
(g) The Special Servicer shall permit notify the Master Servicer, any related Sub-Servicers and the Trustee, in writing, of any modification, waiver or amendment of any term of any Performing Mortgage Loan (including fees charged the Mortgagor) and the date thereof, and shall deliver to the Custodian for deposit in the related Mortgage File, an original counterpart of the agreement relating to such modification, waiver or amendment, promptly (and in any event within ten Business Days) following the execution thereof. Copies of each agreement whereby 110 any such modification, waiver or amendment of any term of any Mortgage Loan is effected shall be made available for review upon prior request during normal business hours at the offices of the Special Servicer pursuant to Section 3.15(g) hereof.
(h) If, with respect to any Defeasance Loan, the Master Servicer shall receive a notice from the related Mortgagor that it intends to prepay the related Defeasance Loan in accordance with the terms thereof, except as set forth below, the Master Servicer shall (a) promptly respond to such notice in a manner which would require that the Mortgagor pledge Defeasance Collateral in lieu of such prepayment pursuant to the terms of the related Mortgage Note, (b) notify each Rating Agency, the Controlling Class Representative, the Trustee and the Underwriters of the request to defease a Mortgage Loan and (c) upon the written confirmation from each Rating Agency described in the next paragraph, take such further action as provided in such Mortgage Note to effectuate such defeasance, including the purchase and perfection of the Defeasance Collateral in the name of the Trustee, as trustee for the registered holders of First Union Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, FUNB Series 1999-C1. Notwithstanding the above, the Master Servicer shall not permit a pledge of Defeasance Collateral in lieu of prepayment under a Defeasance Loan if (i) such defeasance would occur within two years of the Startup Day, (ii) such Defeasance Loan (or any applicable agreement executed in connection with the related defeasance) provides that the Mortgagor will be liable for any shortfalls from the Defeasance Collateral or otherwise become subjected to recourse liability with respect to the Defeasance Loan, (iii) such defeasance would result in a new Mortgagor on the Defeasance Loan (unless such new Mortgagor is acquiring the Mortgaged Property that was the initial security for the Defeasance Loan), (iv) the Mortgagor fails to pay the expenses associated with defeasing such Mortgage Loan (including without limitation the costs of Opinions of Counsel and Rating Agency fees), or (v) any Rating Agency does not confirm in writing to the Master Servicer that the acceptance of a pledge of the Defeasance Collateral in lieu of a full prepayment will not result in a downgrade, withdrawal or qualification of the ratings then assigned by it to any Class of Certificates.
(i) For any Mortgage Loan other than a Specially Serviced Mortgage Loan unless all and subject to the rights of the Special Servicer set forth in this Section 3.20, the Master Servicer shall be responsible for any request by a Mortgagor for the consent of the mortgagee for a modification, waiver or amendment of any term with respect to:
(i) Approving routine leasing activity (including any subordination, standstill and attornment agreements) with respect to leases for less than the lesser of (a) 30,000 square feet and (b) 20% of the related fees and expenses are paid by the BorrowerMortgaged Property;
(viiii) Approving a change of the applicable property manager at the request of the related Mortgagor provided that the successor property manager is not affiliated with the Mortgagor and is a nationally or regionally recognized manager of similar properties; provided that in the event at the time of such modification, the principal balance of the related Mortgage Loan plus the principal balance of any Mortgage Loans that are cross collateralized, cross defaulted or made to related borrowers with the Mortgage Loan subject to such modification exceeds $15,000,000 or exceeds 5% of the aggregate principal balance of all Mortgage Loans, the Master Servicer shall have received written confirmation from each Rating Agency that such changes will not result in the qualification, downgrade or withdrawal to the ratings then assigned to the Certificates and written consent from the Special Servicer and the Controlling Class Representative with respect to such modification;
(iii) Approving any waiver affecting the timing of receipt of financial statements from any Mortgagor provided that such financial statements are delivered no less than quarterly and within 60 days of the end of the calendar quarter;
(iv) Approving annual budgets for the related Mortgaged Property, provided that no such budget (1) provides for the payment of operating expenses in an amount equal to more than 110% of the amounts budgeted therefor for the prior year or (2) provides for the payment of any material expenses to any affiliate of the Mortgagor (other than the payment of a management fee to any property manager if such management fee is no more than the management fee in effect on the Cut-off Date); and
(v) Subject to other restrictions herein regarding Principal Prepayments, waiving any provision of a Mortgage Loan requiring a specified number of days notice prior to a Principal Prepayment.
(j) The Special Servicer shall not permit (orconsent to the modification, in the case waiver or amendment of a Performing Serviced Lease Enhancement Policy or RVI Policy without receiving prior written confirmation from each Rating Agency that such modification, waiver or amendment will not result in a qualification, downgrade or withdrawal of the ratings on the Certificates or the prior written consent of each Rating Agency. The Master Servicer shall not consent to any modification, waiver or amendment of any Lease Enhancement Policy.
(k) To the extent that either the Master Servicer or Special Servicer waives any Penalty Interest or late charge in respect of any Mortgage Loan, consent whether pursuant to Section 3.02(a) or this Section 3.20, the respective amounts of additional servicing compensation payable to the applicable Master Servicer’sServicer and the Special Servicer out of such Penalty Interest or late charges shall be reduced proportionately based upon the respective amounts that had been payable thereto out of such Penalty Interest or late charges immediately prior to such waiver.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend forgive or defer the maturity of, defer or forgive payment of interest (including including, without limitation, Default Interest) on and principal of, defer or forgive late payment charges, charges and Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor ofof any Mortgage Loan it is required to service and administer hereunder, without the consent of the Trustee or, except as contemplated by clause (ii) below, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Certificateholder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section Sections 3.02 (with respect to Default Charges Penalty Charges) and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine mattersclauses), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially it is required to service and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan administer hereunder that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the Master Servicer's good faith and reasonable judgment of the applicable Special Servicerjudgment, would materially impair the security for such Mortgage LoanLoan or reduce the likelihood of timely payment of amounts due thereon; the Special Servicer may, unless however, agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, a Specially Serviced Mortgage Loan that would have any such effect, but only if a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer's reasonable and good faith judgment, a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, ) on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, performed at the related Net Mortgage Rate immediately prior to the Anticipated Repayment DateRate), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iiiii) neither the applicable Master Servicer nor the applicable Special Servicer shall may not, in connection with any particular extension, extend the date on which any Balloon Payment is scheduled to be due on any Specially Serviced Mortgage Loan to a date for more than one year beyond the earlier later of (A) five years prior to the Rated Final Distribution such Mortgage Loan's Stated Maturity Date and (B) if the date to which the Special Servicer has previously extended the maturity date in accordance with this Section 3.20; and, in addition, the Special Servicer may not extend the date on which any Balloon Payment is scheduled to be due on any Specially Serviced Mortgage Loan beyond the third anniversary of such Mortgage Loan Loan's Stated Maturity Date if (X) any person or entity has been selected and is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years then serving as Extension Adviser and (or, Y) such Extension Adviser has objected to the extent consistent with the Servicing Standard, giving due consideration such extension pursuant to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend)Section 3.26;
(iviii) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) or in Section 3.08 with respect to, any Mortgage Loan or Serviced Loan Combination that would (A) cause REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in an Adverse the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day of either such REMIC Event with respect under the REMIC Provisions or (B) cause any Mortgage Loan to any REMIC Pool or an Adverse Grantor Trust Event with respect with cease to be a "qualified mortgage" within the Grantor Trust Pool meaning of Section 860G(a)(3) of the Code (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them the Master Servicer and the Special Servicer may rely on Opinions of Counsel in making such decisions);
(viv) (A) in neither the event of a taking of Master Servicer nor the Special Servicer shall permit any portion of Mortgagor to add or substitute any real property collateral securing for an outstanding Serviced Mortgage Loan by a stateLoan, political subdivision which additional or authority thereofsubstitute collateral constitutes real property, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, unless the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have first determined in accordance with the Condemnation Proceeds Servicing Standard, based upon a Phase I Environmental Assessment (or other similar award) and such additional environmental testing as the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes deems necessary and appropriate) prepared by an Independent Person who regularly conducts Phase I Environmental Assessments (and such additional environmental testing), at the expense of the Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the Serviced use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws and/or regulations; and
(v) neither the Master Servicer nor the Special Servicer shall release or substitute any collateral securing an outstanding Mortgage Loan would remain “principally secured by an interest except as provided in real property” within Section 3.09(d) and except in the meaning case of Section 1.860G-2(b)(7)(iia release where (A) or (iii) the use of the Treasury Regulations collateral to be released will not, in the Master Servicer's or Special Servicer's, as the case may be, good faith and reasonable judgment, materially and adversely affect the Net Operating Income being generated by or the use of the related Mortgaged Property, (taking into account B) there is a corresponding principal paydown of such Mortgage Loan in an amount at least equal to, or a delivery of substitute collateral with an appraised value at least equal to, the appraised value of the real property continuing collateral to secure such Serviced be released, (C) the remaining Mortgaged Property and any substitute collateral is, in the Master Servicer's or Special Servicer's, as the case may be, good faith and reasonable judgment, adequate security for the remaining Mortgage Loan after and (D) such release and/or substitution would not result in the downgrade, qualification or withdrawal of the rating then assigned by any restoration Rating Agency to any Class of Certificates (as confirmed in writing by each Rating Agency); provided that (1) the limitations, conditions and restrictions set forth in clauses (i) through (v) above shall not apply to (x) any of the acts referenced in this Section 3.20(a) in respect of any Mortgage Loan that is required under the terms of such real property), Mortgage Loan in effect on the Closing Date or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (iy) the release of any portion the lien with respect to approximately 1600 square feet of a unimproved land from the Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if relating to the Mortgage Loan Documents require identified on the related Mortgage Loan Schedule by loan number N091 (Parkside Commons), which release has been agreed to by NMCC, as mortgagee, but not fully documented as of the Closing Date, and (2) notwithstanding clauses (i) through (v) above, neither the Master Servicer nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Mortgagor if in their reasonable and good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(b) The Special ServicerServicer shall have no liability to the Trust Fund, the Certificateholders or any other Person if its analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20
(a) is reasonably likely to produce a greater recovery to Certificateholders on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as applicable, to calculate (or approve the calculation analysis and determination were made on a reasonable basis in good faith by the related Borrower ofSpecial Servicer and the Special Servicer was not negligent in ascertaining the pertinent facts. Each such determination shall be evidenced by an Officer's Certificate to such effect to be delivered by the Special Servicer to the Trustee.
(c) the loan-to-value ratio Any payment of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Propertiesinterest, which is deferred pursuant to Section 3.20(a), shall not, for purposes of REMIC qualification hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, then notwithstanding that the terms of such calculation Mortgage Loan so permit or that such interest may actually be capitalized.
(d) The Master Servicer and the Special Servicer each may, as a condition to its granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Master Servicer's or Special Servicer's, as the case may be, discretion pursuant to the terms of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, instruments evidencing or securing the related Mortgage Loan Documents and is permitted by the terms of this Agreement, require that such Mortgagor pay to it, as additional servicing compensation, a reasonable and customary fee (not to exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for the additional services performed in connection with such request, together with any related costs and expenses incurred by it.
(e) All modifications, waivers, amendments and other actions entered into or taken in respect of the Mortgage Loans pursuant to this Section 3.20 shall be in writing. Each of the Master Servicer and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit notify the other such party, the Extension Adviser and the Trustee, in writing, of any modification, waiver, amendment or other action entered into or taken in respect of any Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall deliver to the Trustee or the related Custodian for deposit in the related Mortgage File (with a copy to the other such party), an original counterpart of the agreement relating to such modification, waiver, amendment or other action, promptly (and in any event within 10 Business Days) following the execution thereof. In addition, following the execution of any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid agreed to by the Borrower;
(viiSpecial Servicer pursuant to Section 3.20(a) above, the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent deliver to the applicable Master Servicer’sServicer and the Trustee an Officer's Certificate setting forth in reasonable detail the basis of the determination made by it pursuant to clause (i) of Section 3.20(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Capital Funding Inc)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer Subject to the provisions of Section 8.19 and this Section 14.2 (and, in the case of a any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or Group, subject to the terms of the related Co-Lender Agreement), the applicable Master Servicer (in and the case applicable Special Servicer may, on behalf of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) Trustee, agree to any modification, waiver or amendment of any term of, extend of any Mortgage Loan without the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution consent of the Borrower on Trustee or any guarantor of, Certificateholder.
(i) For any non-Specially Serviced Mortgage Loan for which it is responsible(and Serviced Companion Loan), and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, subject to the rights of third parties the applicable Special Servicer set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)below, the applicable Master Servicer shall not agree be responsible subject to the other requirements of this Agreement with respect thereto, for any request by a Mortgagor for the consent of the mortgagee or a modification, waiver or amendment of any term ofthereof; provided that such consent or modification, waiver or take any of the other acts referenced amendment would not (except as provided in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x5.1) affect the amount or timing of any related payment scheduled payments of principal, interest or other amount amounts payable under such Mortgage Loan, (y) materially and adversely affect the security obligation of the related Mortgagor to pay a Prepayment Premium or Yield Maintenance Charge or permit a Principal Prepayment by the Mortgagor during a prepayment lockout period, result in the release of the related Mortgagor from any material term thereunder, waive any rights thereunder with respect to any guarantor thereof, relate to the release or substitution of any material collateral for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Master Servicer, would materially impair the security for such Mortgage Loan or reduce the likelihood of timely payments of amounts due thereon; and provided, further, that this Section 14.2(a)(i) does not apply to waivers contemplated by Section 8.2, Section 9.2 or Section 14.1. To the extent consistent with the foregoing, the applicable Master Servicer shall have the right to grant approvals or waivers or otherwise take actions with respect to, as applicable, the following (the following items not to be considered exclusive):
(A) approving routine leasing activity with respect to:
(1) leases for properties that are residential cooperative properties; and
(2) leases for properties other than residential cooperative properties for less than the lesser of (a) 15,000 square feet and (b) 20% of the related Mortgaged Property; provided that (1) except with respect to any Co-op Mortgage Loan, unless no subordination, non-disturbance and attornment agreement (an "SNDA") exists with respect to such lease and (2) no such lease is a Ground Lease; and provided further that, except with respect to any Co-op Mortgage Loan, no Master Servicer shall grant or approve (but shall forward to the applicable Special Servicer for its approval) any requests for (or any waiver, consent, approval, amendment or modification in connection with) an SNDA or approval of a lease that contains an SNDA;
(B) approving annual budgets for the related Mortgaged Property; provided that no such budget (1) relates to a fiscal year in which an Anticipated Repayment Date occurs, (2) except with respect to Co-op Mortgage Loans provides for the payment of operating expenses in an amount equal to more than 110% of the amounts budgeted therefor for the prior year or (3) provides for the payment of any material default expenses to any affiliate of the Mortgagor (other than the payment of a management fee to any property manager if such management fee is no more than the management fee in effect on the Cut-off Date);
(C) waiving any provision of a Mortgage Loan not requiring the receipt of a Rating Agency Confirmation if such Mortgage Loan has occurred oris not a Significant Mortgage Loan and the related provision of such Mortgage Loan does not relate to a "due-on-sale" or "due-on-encumbrance" clause (other than waivers of "due-on-encumbrance" clauses for Co-op Mortgage Loans as to which the NCB Subordinate Debt Conditions are satisfied) or defeasance (which shall be subject to the terms of Section 8.3(h) hereof);
(D) subject to other restrictions herein regarding Principal Prepayments, in waiving any provision of a Mortgage Loan requiring a specified number of days notice prior to a Principal Prepayment;
(E) releases of non-material parcels of a Mortgaged Property (provided that releases as to which the reasonable judgment related Mortgage Loan documents expressly require the related Mortgagor thereunder to make such releases upon the satisfaction of certain terms or conditions shall be made as required by such Mortgage Loan documents);
(F) with respect to any non-Specially Serviced Mortgage Loans (or Serviced Companion Loans), the applicable Master Servicer may (without the consent of the applicable Special Servicer) grant a Mortgagor's request for consent to subject the related Mortgaged Property to an easement, right-of-way or similar agreement for utilities, access, parking, public improvements or another similar purpose and may consent to subordination of the related Mortgage Loan(s) (or Serviced Companion Loan(s)) to such easement, right-of-way or similar agreement; provided that the applicable Master Servicer shall have determined (i) in accordance with the Servicing Standard that such easement, right-of-way or similar agreement will not materially interfere with the then-current use of the related Mortgaged Property or the security intended to be provided by such Mortgage and will not materially or adversely affect the value of such Mortgaged Property and (ii) that no REMIC Pool will fail to qualify as a default REMIC as a result thereof and that no tax on "prohibited transactions" or "contributions" after the Closing Date would be imposed on any REMIC Pool as a result thereof; and provided, further that the applicable Master Servicer shall cause the Mortgagor to pay the costs (including attorneys' fees and expenses) associated with the determination described in clause (ii);
(G) consenting to changing the property manager at the request of the Mortgagor, for so long as, other than with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeableMM Loans, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent successor property manager is not affiliated with the allocation Mortgagor and payment priorities set forth in is a reputable manager of similar properties and (B) the related Mortgage Loan Documents(other than a Co-op Mortgage Loan) has an unpaid principal balance of less than $5,000,000 or, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of if the related Mortgage Loan nor any Serviced Pari Passu Companion is a Co-op Mortgage Loan, such Co-op Mortgage Loan Holder shall gain a priority over any other with has an unpaid principal balance of less than $10,000,000. With respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceedingMM Loans, the applicable Master Servicer may consent to a changing of the property manager at the request of the Mortgagor if (A) the successor property manager is a reputable property manager of similar properties and either (x) the successor property manager is not affiliated with the Mortgagor or (y) the applicable Special Servicer, as successor property manager is affiliated with the case may be, shall apply the Condemnation Proceeds (or other similar award) Mortgagor and the net proceeds from outgoing property manager is also affiliated with the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) Mortgagor and (B) the related MM Loan has an unpaid principal balance of less than $5,000,000;
(H) waive any Penalty Charges on any non-Specially Serviced Mortgage Loan in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related delinquent payment on such Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(viI) subject with respect to applicable law, the related Co-op Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage LoanLoans, consent to the applicable Master Servicer’smodification or amendment of the related Mortgagor's organizational documents; and
(J) disbursements of any earnouts or holdback amounts;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2006-Iq11)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend forgive or defer the maturity of, defer or forgive payment of interest (including including, without limitation, Default Interest) on and principal of, defer or forgive late payment charges, charges and Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor of, of any Serviced Mortgage Loan for which it is responsiblerequired to service and administer hereunder (except that any assumption with respect to a Mortgage Loan serviced and administered by the Master Servicer must also be consented to by the Special Servicer), and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Trustee or any Certificateholder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section 3.02 (with respect to Default Charges Charges) and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowersclauses), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), neither the applicable Master Servicer nor the Special Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially it is required to service and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan administer hereunder that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of Master Servicer's or the applicable Special Servicer's good faith and reasonable judgment, would materially impair alter the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or reduce the applicable Special Servicer reasonably believes that there is a significant risk likelihood of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case timely payment of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (thereon or, to the extent consistent required by the REMIC Provisions, materially increase, substitute or otherwise alter the collateral for the Mortgage Loan (other than the alteration or construction of improvements thereon) or any guarantee or credit enhancement contract with respect thereto (other than the Servicing Standardsubstitution of a similar commercially available credit enhancement contract); provided, giving due consideration to however, the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit may agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, a Specially Serviced Mortgage Loan that would have any such effect, but only if a material default on such Mortgage Loan has occurred or, in the Special Servicer's reasonable and good faith judgment, a default in respect of payment on such Mortgage Loan is reasonably foreseeable, and such modification, waiver, amendment or other action is reasonably likely to produce a greater recovery to Certificateholders (as a collective whole) on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders to be performed at the related Net Mortgage Rate), than would liquidation;
(ii) the Special Servicer may not, in connection with any particular extension, extend the maturity date of any Specially Serviced Mortgage Loan beyond August 20, 2028, or beyond the date which is 10 years prior to the expiration date of any related Ground Lease;
(iii) unless the proviso in Section 3.20(a)(i) above applies, neither the Master Servicer nor the Special Servicer shall make or permit any modification, waiver or amendment of any term of, referenced in this Section 3.20(a) or in Section 3.08 with respect to, any Mortgage Loan not otherwise permitted by this Section 3.20(a) or Serviced Loan Combination in Section 3.08 that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to constitute a "significant modification" of such Mortgage Loan within the Grantor Trust Pool meaning of Treasury Regulations Section 1.860G-2(b) (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them the Master Servicer and the Special Servicer may rely on Opinions of Counsel in making such decisions);
(viv) neither the Master Servicer nor the Special Servicer shall permit any Mortgagor to add or substitute any collateral for an outstanding Mortgage Loan, which additional or substitute collateral constitutes real property, unless (A) the Special Servicer shall have first determined in accordance with the Servicing Standard, based upon a Phase I Environmental Assessment (and such additional environmental testing as the Special Servicer deems necessary and appropriate) prepared by an Independent Person who regularly conducts Phase I Environmental Assessments (and such additional environmental testing), at the expense of the Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws and/or regulations and (B) in the event case of a taking substitutions of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceedingonly, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have obtained written confirmation from each Rating Agency that such substitution will not result in the Condemnation Proceeds (withdrawal, downgrade or other similar award) and the net proceeds from the receipt qualification of any insurance rating then assigned to any Class of Certificates;
(v) neither the Master Servicer nor the Special Servicer shall release any collateral securing an outstanding Mortgage Loan (including, without limitation, as part of a substitution of collateral), except in connection with a payment in full or tort settlement with respect a defeasance pursuant to such real property to pay down the principal balance terms of the Serviced related Mortgage Loan or, subject to the other provisions of this Section 3.20, a discounted payoff of such Mortgage Loan, unless immediately after or except as provided in Section 3.09(d), or except where Section 3.20(a)(iii) applies and the release of such portion Rating Agencies have been notified in writing and (A) either (1) the use of the real property collateralcollateral to be released will not, in the applicable Master Servicer Servicer's or the applicable Special Servicer's, as the case may be, reasonably believes that good faith and reasonable judgment, materially and adversely affect the Serviced Net Operating Income being generated by or the use of the related Mortgaged Property, or (2) there is a corresponding principal paydown of such Mortgage Loan would remain “principally secured by in an interest in real property” within amount at least equal to, or a delivery of substitute collateral with an appraised value at least equal to, the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the appraised value of the real property continuing collateral to secure such Serviced Mortgage Loan after any restoration of such real property)be released, or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a remaining Mortgaged Property from and any substitute collateral is, in the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer Servicer's or Special Servicer's, as the case may be, good faith and reasonable judgment, adequate security for the remaining Mortgage Loan and (C) if the collateral that is being released has an Appraised Value in excess of $3,000,000, or if any substitution of collateral is to be made, the Rating Agencies have each confirmed in writing that such release and/or substitution would not result in the downgrade, qualification or withdrawal of the rating then assigned by Xxxxx'x and/or S&P, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio any Class of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;Certificates; and
(vi) subject to applicable lawwithout the consent of the Directing Certificateholder, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a), with respect to any Performing Specially Serviced Mortgage Loan unless all related fees and expenses are paid if such act would not be generally consistent with the Asset Status Report approved by the Borrower;
(vii) Directing Certificateholder or the Certificateholders, as applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’saccordance with Section 3.21.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Nationslink Funding Corp Comm Mort Pass THR Cert Ser 1998-2)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest and Post-ARD Additional Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, 3.24 and/or 3.283.27, as applicable, and, in the case of each Serviced Mortgage Loan in a Serviced Mortgage Loan CombinationGroup, to the rights of third parties set forth in the related Mortgage Loan Group Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insuranceInterest and Default Charges), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d3.19(e) (with respect to defeasances), Section 3.20(e) (with respect to Post-ARD Additional Interest) and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) Loan or materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material ActionLoan, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 and/or 3.263.27, as applicable), and (C) except with respect to any Nationwide Pooled Mortgage Loan and any PCF Pooled Mortgage Loan, if any such consent has not been expressly denied within fifteen (15) ten Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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 grantedgranted and (D) solely with respect to any Nationwide Pooled Mortgage Loan and any PCF 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 initial 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 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);
(ii) other than as provided in Sections 3.02, 3.08 3.08, 3.20(e) and 3.20(e3.20(f), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s 's taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Mortgage Loan CombinationGroup, the related Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(sNoteholder(s)), as a collective whole, on a net present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Mortgage Loan CombinationGroup, the related relevant Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder(s)Noteholder(s) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD a Serviced Mortgage Loan after its Anticipated Repayment DateGroup, at in no event less than the related weighted average of the Net Mortgage Rate immediately prior to Rates for the Anticipated Repayment DateMortgage Loans in such Mortgage Loan Group)), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any the related Serviced Mortgage Loan Combination Group shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Mortgage Loan Group Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Pooled Mortgage Loan nor any Serviced Pari Passu Companion Non-Pooled Mortgage Loan Holder Noteholder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Mortgage Loan Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Mortgage Loan Group Intercreditor Agreement; and (B) to the extent consistent with the Servicing StandardStandard (taking into account the extent to which the related Serviced Non-Pooled Subordinate Loan, if any, is junior to a Serviced Pooled Mortgage Loan), (I) no waiver, reduction or deferral of any particular amounts due on the related Serviced Pooled Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Non-Pooled Subordinate Loan, (II) no reduction of the Mortgage Rate (exclusive, if applicable, of any portion thereof that represents a Post-ARD Additional Interest Rate) of any such Serviced Pooled Mortgage Loan shall be effected prior to the reduction of the Mortgage Rate (exclusive, if applicable, of any portion thereof that represents a Post-ARD Additional Interest Rate) of the related Serviced Non-Pooled Subordinate Loans, and (III) no reduction of any Post-ARD Additional Interest Rate applicable to any such Serviced Pooled Mortgage Loan shall be effected prior to the reduction of any Post-ARD Additional Interest Rate applicable to the related Serviced Non-Pooled Subordinate Loan;
(iii) neither the Special Servicer shall not extend (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer nor the applicable Special Servicer shall extend Servicer's extending) the date on which any Balloon Payment is scheduled to be due on any Serviced Mortgage Loan to a date beyond the earlier earliest of (A) five two years prior to the Rated Final Distribution Date and Date, (B) if such Serviced Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s 's leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-then current term of the related Ground Lease or Space Lease (plus any unilateral options to extend), and (C) if such Serviced Mortgage Loan is covered by an Environmental Insurance Policy, for more than five years later than such Serviced Mortgage Loan's Stated Maturity Date, unless either (I) the Special Servicer shall have first determined in its reasonable judgment, based upon a Phase I Environmental Assessment (and any additional -176- environmental testing that the Special Servicer deems necessary and prudent) conducted by an Independent Person who regularly conducts Phase I Environmental Assessments, and at the expense of the Borrower, that there are no circumstances or conditions present at the related Mortgaged Property for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws or regulations or (II) the Borrower obtains (at its expense) an extension of such policy on the same terms and conditions for a period ending not earlier than five years following the extended maturity date of such Serviced Mortgage Loan;
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the any Grantor Trust Pool (the applicable Master Servicer Servicers and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(viivi) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s's permitting) any Borrower to add or substitute any real estate collateral for its Serviced Mortgage Loan unless the Special Servicer shall have first (A) determined in its reasonable judgment, based upon a Phase I Environmental Assessment (and any additional environmental testing that the Special Servicer deems necessary and prudent) conducted by an Independent Person who regularly conducts Phase I Environmental Assessments, at the expense of the related Borrower, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws or regulations and (B) received, at the expense of the related Borrower, written confirmation from each Rating Agency for the Rated Certificates that such addition or substitution of collateral will not result in an Adverse Rating Event with respect to any Class of Rated Certificates rated by such Rating Agency and, in the case of an addition or substitution of collateral with respect to any Serviced Mortgage Loan Group that includes one or more Serviced Non-Pooled Pari Passu Companion Loans, also a written confirmation from each applicable Rating Agency for the related Non-Pooled Pari Passu Companion Loan Securities that such addition or substitution of collateral will 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; and
(vii) the Special Servicer shall not release (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer's releasing), including in connection with a substitution contemplated by clause (vi) above, any real property collateral securing an outstanding Serviced Mortgage Loan, except as provided in Section 3.09(d), except as specifically required under the related Mortgage Loan Documents or except where a Mortgage Loan (or, in the case of a Cross-Collateralized Group, where such entire Cross-Collateralized Group) is satisfied, or except in the case of a release where (A) the Rating Agencies have been notified in writing, (B) either (1) the use of the collateral to be released will not, in the reasonable judgment of the Special Servicer, materially and adversely affect the net operating income being generated by or the use of the related Mortgaged Property, or (2) there is a corresponding principal pay down of such Mortgage Loan in an amount at least equal to the appraised value of the collateral to be released (or substitute real estate collateral with an appraised value at least equal to that of the collateral to be released, is delivered), (C) the loan-to-value ratio of such Mortgage Loan after such release will be, in the reasonable judgment of the Special Servicer, no greater than that existing prior to such release and (D) if the collateral to be released has an appraised value in excess of
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Commercial Mortgage Securities Trust 2005-Pwr9)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) each may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges capitalize interest on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor ofof any Mortgage Loan or any Serviced Companion Loan it is required to service and administer hereunder, without the consent of the Trustee, any Certificateholder or holder of a Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Companion Loan, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to 3.30 and each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Sections 3.02 and 3.08, but subject to Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters3.21(j), the applicable Master Servicer (in such capacity) shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a3.21(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, Loan that would (xA) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loanthereunder, (yB) affect the obligation of the related Mortgagor to pay any Prepayment Premium or permit a Principal Prepayment during any period when the terms of the Mortgage Loan or Serviced Companion Loan prohibit the making of Principal Prepayments or (C) in the Master Servicer's good faith and reasonable judgment, materially and adversely affect impair the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Actionreduce the likelihood of timely payment of amounts due thereon; provided, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained Servicer, with the consent of the applicable Majority Certificateholder of the Controlling Class, shall have the authority to extend the due date of a Balloon Payment for up to one year (but for no more than two such one-year extensions) on any Mortgage Loan; provided, the Special Servicer (it being understood and agreed that (Ain such capacity) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a3.21(a)(i) with respect to, any a Specially Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of have any related payment of principalsuch effect, interest or other amount payable thereunder orbut only if, in the reasonable judgment of the applicable Special Servicer's reasonable and good faith judgment, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan or Serviced Companion Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, or a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in with respect to the case of a Serviced Loan CombinationWhole Loans, the Certificateholders and, to the extent applicable, any related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, Holders on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date)basis, than would liquidation; provided that ;
(Aii) any modification, extension, waiver or amendment of such action taken by the payment terms of any related Serviced Loan Combination Special Servicer shall be structured in accompanied by an Officer's Certificate to such effect and to which is attached the present value calculation which establishes the basis for such determination, a manner so as to copy of which shall be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) delivered to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior Trustee for delivery to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion LoanRating Agencies;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on Stated Maturity Date of any Mortgage Loan to a date or Serviced Companion Loan beyond the earlier of (A) five date that is two years prior to the Rated Final Distribution Date and (B) if such and, in the case of any Mortgage Loan or Serviced Companion Loan that is secured solely by a Mortgage solely Ground Lease, the Master Servicer or primarily on the related Borrower’s leasehold interest in Special Servicer, as the related Mortgaged Propertycase may be, 20 years (or, to the extent consistent with the Servicing Standard, giving shall give due consideration to the remaining term of the related such Ground Lease or Space Lease, ten years) prior to extending the end Stated Maturity Date of the then-current term of the related Ground Lease Mortgage Loan or Space Lease (plus any unilateral options to extend)Serviced Companion Loan;
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a3.21(a) or Section 3.20(h) with respect to, any Mortgage Loan or Serviced Companion Loan Combination that would (A) cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC under the Code or (subject to Section 10.01(f)) result in an Adverse the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day of any such REMIC Event with respect under the REMIC Provisions or (B) cause any Mortgage Loan or Serviced Companion Loan to any REMIC Pool or an Adverse Grantor Trust Event with respect with cease to be a "qualified mortgage" within the Grantor Trust Pool meaning of Section 860G(a)(3) of the Code (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them may the Master Servicer and the Special Servicer shall rely on Opinions opinions of Counsel counsel in making such decisions);
(v) (A) in neither the event of a taking of Master Servicer nor the Special Servicer shall permit any portion of Mortgagor to add or substitute any real property collateral securing for an outstanding Serviced Mortgage Loan by a stateor Serviced Companion Loan, political subdivision or authority thereofwhich collateral constitutes real property, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, unless the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have first determined, in its reasonable and good faith judgment, based upon an Environmental Assessment performed within the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect twelve months prior to such real property to pay down determination (and such additional environmental testing as the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured deems necessary and appropriate) prepared by an interest in real property” within Independent Person who regularly conducts Environmental Assessments (and such additional environmental testing), at the meaning of Section 1.860G-2(b)(7)(ii) or (iii) expense of the Treasury Regulations (taking into account Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property)use, management or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release disposal of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or (ii) the taking of remediation would be required under any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trusteeenvironmental laws and/or regulations;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modificationshall, waiver with respect to a Mortgage Loan or amendment of any term of any Performing Serviced Companion Loan, other than a Specially Serviced Mortgage Loan unless all related fees release or substitute any collateral securing an outstanding Mortgage Loan or Serviced Companion Loan except as provided in Sections 3.08 and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s3.09
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) each may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges capitalize interest on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor of, of any Serviced Mortgage Loan for which it is responsiblerequired to service and administer hereunder, and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Trustee or any Certificateholder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Section Sections 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)3.08, the applicable Master Servicer (in such capacity) shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (xA) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loanthereunder, (yB) affect the obligation of the related Mortgagor to pay any Prepayment Premium or permit a Principal Prepayment during any period when the terms of the Mortgage Loan prohibit the making of Principal Prepayments or, (C) in the Master Servicer's good faith and reasonable judgment, materially and adversely affect impair the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in reduce the case likelihood of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) timely payment of amounts due thereon; the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (Ain such capacity) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modificationmay, waiver or amendmenthowever, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any a Specially Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of have any related payment of principalsuch effect, interest or other amount payable thereunder orbut only if, in the reasonable judgment of the applicable Special Servicer's reasonable and good faith judgment, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, or a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date)basis, than would liquidation; provided that ;
(Aii) any modification, extension, waiver or amendment of such action taken by the payment terms of any related Serviced Loan Combination Special Servicer shall be structured in accompanied by an Officer's Certificate to such effect and to which is attached the present value calculation which establishes the basis for such determination, a manner so as to copy of which shall be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) delivered to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior Trustee for delivery to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion LoanRating Agencies;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on Stated Maturity Date of any Mortgage Loan to a date beyond the earlier of (A) five date that is two years prior to the Rated Final Distribution Date and (B) if such and, in the case of any Mortgage Loan that is secured solely by a Mortgage solely Ground Lease, the Master Servicer or primarily on the related Borrower’s leasehold interest in Special Servicer, as the related Mortgaged Propertycase may be, 20 years (or, to the extent consistent with the Servicing Standard, giving shall give due consideration to the remaining term of the related such Ground Lease or Space Lease, ten years) prior to extending the end Stated Maturity Date of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend)Mortgage Loan;
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) or clause (h) of Section 3.19 with respect to, any Mortgage Loan or Serviced Loan Combination that would (A) cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC under the Code or (subject to Section 10.01(f)) result in an Adverse the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day of any such REMIC Event with respect under the REMIC Provisions or (B) cause any Mortgage Loan to any REMIC Pool or an Adverse Grantor Trust Event with respect with cease to be a "qualified mortgage" within the Grantor Trust Pool meaning of Section 860G(a)(3) of the Code (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for judgments as regards decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them the Master Servicer and the Special Servicer may rely on Opinions opinions of Counsel counsel in making such decisions);
(v) (A) in neither the event of a taking of Master Servicer nor the Special Servicer shall permit any portion of Mortgagor to add or substitute any real property collateral securing for an outstanding Serviced Mortgage Loan by a stateLoan, political subdivision or authority thereofwhich collateral constitutes real property, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, unless the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have first determined, in its reasonable and good faith judgment, based upon an Environmental Assessment performed within the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect twelve months prior to such real property to pay down determination (and such additional environmental testing as the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes deems necessary and appropriate) prepared by an Independent Person who regularly conducts Environmental Assessments (and such additional environmental testing), at the expense of the Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the Serviced use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws and/or regulations; and
(vi) neither the Master Servicer nor the Special Servicer shall release or substitute any collateral securing an outstanding Mortgage Loan would remain “principally secured by an interest except as provided in real property” within Sections 3.08 and 3.09(d) and except in the meaning case of Section 1.860G-2(b)(7)(iia release where (A) or (iii) the use of the Treasury Regulations collateral to be released will not, in the Master Servicer's or Special Servicer's, as the case may be, good faith and reasonable judgment, materially and adversely affect the Net Operating Income being generated by or the use of the related Mortgaged Property, (taking into account B) there is a corresponding principal paydown of such Mortgage Loan in an amount at least equal to, or a delivery of substitute collateral with an appraised value at least equal to, the appraised value of the real property continuing collateral to secure such Serviced be released, (C) the remaining Mortgaged Property and any substitute collateral is, in the Master Servicer's or Special Servicer's, as the case may be, good faith and reasonable judgment, adequate security for the remaining Mortgage Loan after and (D) such release and/or substitution would not, in and of itself, result in the downgrade, qualification (including by placement on "negative credit watch") or withdrawal of the rating then assigned by any restoration Rating Agency to any Class of Certificates (as confirmed in writing by each Rating Agency); provided that (x) the limitations, conditions and restrictions set forth in clauses (i) through (vi) above shall not apply to any modification of any term of any Mortgage Loan or any other acts referenced in this Section 3.20(a) that is required under the terms of such real property)Mortgage Loan in effect on the Closing Date and that is solely within the control of the related Mortgagor, or as may be permitted by Rev. Proc. 2010-30and (y) notwithstanding clauses (i) through (vi) above, 2010-36 I.R.B. 316 (neither the applicable Master Servicer nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Mortgagor if in their reasonable and good faith judgment such opposition would not ultimately prevent the applicable confirmation of such plan or one substantially similar. Neither the Master Servicer nor the Special Servicer may each rely extend the Maturity Date on Opinions of Counsel in making such decisionsany Mortgage Loan except pursuant to this Section 3.20(a) or as otherwise required under the related loan documents.
(b) Neither the Master Servicer nor the Special Servicer shall have any liability to the Trust Fund, the costs of which shall Certificateholders or any other Person if its analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20(a) is reasonably likely to produce a greater recovery to Certificateholders on a present value basis than would liquidation, should prove to be covered bywrong or incorrect, so long as the analysis and reimbursable as, Servicing Advances) and (B) determination were made on a reasonable basis in connection with (i) good faith by the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special ServicerServicer and the Master Servicer or Special Servicer was not negligent in ascertaining the pertinent facts.
(c) Any payment of interest, as applicablewhich is deferred pursuant to any modification, to calculate (waiver or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Propertiesamendment permitted hereunder, shall not, for purposes of REMIC qualification hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, then notwithstanding that the terms of such calculation Mortgage Loan or such modification, waiver or amendment so permit.
(d) The Master Servicer and, with respect to a Specially Serviced Mortgaged Loan, the Special Servicer each may, as a condition to its granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Master Servicer's or the Special Servicer's discretion pursuant to the terms of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, instruments evidencing or securing the related Mortgage Loan Documents and is permitted by the terms of this Agreement, require that such Mortgagor pay to it, as additional servicing compensation, a reasonable or customary fee (not to exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for the additional services performed in connection with such request, together with any related costs and expenses incurred by it.
(e) Except for waivers of Penalty Charges and notice periods, all material modifications, waivers and amendments of the Mortgage Loans entered into pursuant to this Section 3.20 shall be in writing.
(f) Each of the Master Servicer and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit notify the Trustee and such other party, in writing, of any modification, waiver (other than a waiver of Penalty Charges) or amendment of any term of any Performing Serviced Mortgage Loan unless all and the date thereof, and shall deliver to the Trustee or the related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, Custodian for deposit in the case related Mortgage File, an original counterpart of a Performing Serviced Mortgage Loanthe agreement relating to such modification, consent to waiver or amendment, promptly (and in any event within 10 Business Days) following the applicable Master Servicer’sexecution thereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer Master Servicers (in the case of a Serviced with respect to any Mortgage Loan or Serviced Pari Passu Companion Loan that is not a Specially Serviced Mortgage Loan) or and the applicable Master Special Servicer (in the case of a Performing with respect to any Specially Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) each may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity ofof (in the case of any Master Servicer, subject to a maximum of two separate one-year extensions without the consent of the Special Servicer), defer or forgive interest (including Default Penalty Interest and Additional Post-ARD Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower Mortgagor on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26Loan, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (provide consents with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, leasing activity at a Mortgaged Property securing any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained without the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of Trustee or any Borrower request for such modificationCertificateholder; provided, waiver or amendment, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Master Servicers' and the Special Servicer may reasonably request in order Servicer's rights to withhold or grant any such consent, (B) the applicable Special Servicer do so shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and be subject to Section 3.24 and/or 3.26, as applicable)3.08, and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders 6.11 (and, in the case of a Serviced Loan Combination, subject to the terms of the related Serviced Pari Passu Companion Loan Holder(s)Combination Co-Lender Agreement) and, further, to the following subsections of this Section 3.20; and provided, further, that other than as provided in Sections 3.02(a) (relating to waivers of Default Charges), as a collective whole3.08, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)3.20(d) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Dateand 3.20(e), than would liquidation; provided that (A) no Master Servicer shall agree to any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver forbearance or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Loan, unless such Master Servicer has obtained the consent of the Special Servicer (it being understood and agreed that (A) such Master Servicer will promptly provide the applicable Special Servicer with notice of any Mortgagor request for such modification, waiver, forbearance or amendment, such Master Servicer's written recommendations and analysis, and all information reasonably available to such Master Servicer that the Special Servicer may reasonably request in order to withhold or grant any such consent, (B) the Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard and Section 6.11 but subject to Section 3.28 and Section 3.30 and (C) if any such consent has not been expressly denied within 10 Business Days (or, (x) if the Controlling Class Representative is entitled to object pursuant to Section 6.11, 15 Business Days, which 15 Business Days shall be liable for decisions made under this subsection which were made subject to the limitation to five (5) Business Days specified in good faith 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 the Special Servicer's receipt from such Master Servicer of such Master Servicer's recommendations and each of them may rely on Opinions of Counsel analysis and all information reasonably requested thereby and reasonably available to such Master Servicer in making order to make an informed decision (or, if the Special Servicer did not request any information, within 10 Business Days (or 15 Business Days, if applicable) after such decisionsnotice);, such consent shall be deemed to have been granted).
(vb) (A) in the event of a taking All modifications, waivers or amendments of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement shall be in anticipation writing and shall be considered and effected in accordance with the Servicing Standard. None of such condemnation or other similar legal proceeding, the applicable Master Servicer Servicers or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (shall make or approve the calculation by the related Borrower of) the loan-permit or consent to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loanas applicable, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees that would result in an Adverse REMIC Event. Any Master Servicer or the Special Servicer shall determine and expenses are may conclusively rely on an Opinion of Counsel (which Opinion of Counsel shall be an expense of the Trust Fund to the extent not paid by the Borrower;related Mortgagor) to the effect that such modification, waiver or amendment would not (1) effect an exchange or reissuance of the Serviced Mortgage Loan under Treasury Regulations Section 1.860G-2(b) of the Code, (2) cause any REMIC Pool to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions, or (3) adversely affect the status of any Grantor Trust Pool under the Code.
(viic) The Special Servicer, on behalf of the Trust Fund, may agree or consent to (or permit any Master Servicer to agree or consent to) any modification, waiver or amendment of any term of any Serviced Mortgage Loan that would:
(i) affect the amount or timing of any related payment of principal, interest or other amount (including Prepayment Premiums or Yield Maintenance Charges, but excluding Penalty Interest and amounts payable as additional servicing compensation) payable thereunder- (including, subject to the discussion in the following paragraph, any related Balloon Payment); or
(ii) affect the obligation of the related Mortgagor to pay a Prepayment Premium or Yield Maintenance Charge or permit a Principal Prepayment during any period in which the related Mortgage Note prohibits Principal Prepayments; or
(iii) in the judgment of the Special Servicer, materially impair the security for such Mortgage Loan or reduce the likelihood of timely payment of amounts due thereon; only if (A) a material default on the Serviced Mortgage Loan has occurred or, in the Special Servicer's judgment, a material default on the Serviced Mortgage Loan is reasonably foreseeable, and (B) the modification, waiver, amendment or other action is reasonably likely to produce a greater recovery to the Certificateholders (and, in the case of a Serviced Loan Combination, the related Non-Trust Loan Holder(s)), as a collective whole, on a present value basis, than would liquidation. In addition, subject to the third paragraph of this Section 3.20(c), the Special Servicer may extend the date on which any Balloon Payment is scheduled to be due in respect of a Specially Serviced Mortgage Loan if the conditions set forth in the proviso to the prior paragraph are satisfied and the Special Servicer has obtained an Appraisal of the related Mortgaged Property in connection with such extension, which Appraisal supports the determination of the Special Servicer contemplated by clause (B) of the proviso to the immediately preceding paragraph. In no event will any Master Servicer or the Special Servicer (i) extend the maturity date of a Serviced Mortgage Loan beyond a date that is two years prior to the Rated Final Distribution Date and (ii) if the Serviced Mortgage Loan is secured by a Ground Lease (and not by the corresponding fee simple interest), extend the maturity date of such Serviced Mortgage Loan beyond a date which is less than 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the Ground Lease, and with the consent of the Controlling Class Representative, 10 years) prior to the expiration of the term of such Ground Lease including any unilateral options to extend such term. The determination of the Special Servicer contemplated by clause (B) of the proviso to the first paragraph of this Section 3.20(c) shall be evidenced by an Officer's Certificate to such effect delivered to the Trustee, the applicable Master Servicer and, in the case of a Serviced Loan Combination, the related Non-Trust Loan Holder(s) and describing in reasonable detail the basis for the Special Servicer's determination. The Special Servicer shall append to such Officer's Certificate any information including but not limited to income and expense statements, rent rolls, property inspection reports and appraisals that support such determination.
(d) Except as expressly contemplated by the related Mortgage Loan documents, the Special Servicer shall not permit consent to any Master Servicer releasing, which consent shall be, subject to Section 3.28 and Section 3.30, 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), any real property collateral securing an outstanding Serviced Mortgage Loan, except as provided in Section 3.09 or 3.20(e), or except in connection with a permitted defeasance or a pending or threatened immaterial condemnation, or except where a Serviced Mortgage Loan (or, in the case of a Performing Crossed Loan Group, where such entire Crossed Loan Group) is satisfied, or except in the case of a release of real property collateral provided the Rating Agencies have been notified in writing and, with respect to a Serviced Mortgage Loan that is not a Specially Serviced Mortgage Loan, (A) either (1) such release will not, in the reasonable judgment of the Special Servicer (exercised in accordance with the Servicing Standard), materially and adversely affect the net operating income being generated by or the then-current use of the related Mortgaged Property, or (2) there is a corresponding principal pay down of such Serviced Mortgage Loan in an amount at least equal to the Appraised Value of the collateral to be released (or substitute real property collateral with an Appraised Value at least equal to that of the collateral to be released, is delivered), (B) the release does not materially adversely affect the adequacy of the remaining Mortgaged Property (together with any substitute real property collateral), in the reasonable judgment of the Special Servicer (exercised in accordance with the Servicing Standard), as security for the Serviced Mortgage Loan and (C) if the real property collateral to be released has an Appraised Value in excess of $1,500,000, such release would not, in and of itself, result in an Adverse Rating Event (as confirmed in writing to the Trustee by each Rating Agency).
(e) Notwithstanding anything in this Section 3.20, Section 3.28, Section 3.30 or Section 6.11 to the contrary, none of the Master Servicers shall be required to seek the consent of, or provide prior notice to, the Special Servicer, any Certificateholder or the Controlling Class Representative or obtain any confirmation from the Rating Agencies that an Adverse Rating Event would not occur in order to approve the following modifications, waivers or amendments of, or actions with respect to, the Serviced Mortgage Loans (but, in the case of the actions described in clauses (iii) and (iv) of this sentence the applicable Master Servicer, shall notify the Controlling Class Representative thereof):
(i) waivers of non-material covenant defaults (other than financial covenants), including late financial statements;
(ii) waivers of Default Charges, to the extent allowed under Section 3.02;
(iii) releases of unimproved parcels of a Mortgaged Property;
(iv) grants of easements, rights-of-way or other similar agreements in accordance with Section 3.08(b);
(v) approval of routine leasing activities (including any subordination, non-disturbance and attornment agreements) that affect less than the lesser of 30,000 square feet or 30% of the net rentable area of the related Mortgaged Property;
(vi) approval of annual budgets to operate the Mortgaged Property;
(vii) temporary waivers of any requirements in the related Mortgage Loan documents with respect to insurance deductible amounts or claims-paying ability ratings of insurance providers; and
(viii) consenting to changing the property manager with respect to any Mortgage Loan with an unpaid principal balance of less than $2,000,000; provided that any such modification, waiver or amendment, or agreeing to any such modification, waiver or amendment, (w) would not in any way affect a payment term of the Certificates, (x) would not constitute a "significant modification" of such Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event with respect to any REMIC or an Adverse Grantor Trust Event with respect to any Grantor Trust Pool, (y) would be consistent with the Servicing Standard.
(f) Any payment of interest that is deferred pursuant to any modification, waiver or amendment permitted hereunder, shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Serviced Mortgage Loan, notwithstanding that the terms of such modification, waiver or amendment so permit. The foregoing shall in no way limit the Special Servicer's ability to charge and collect from the Mortgagor costs otherwise collectible under the terms of the related Mortgage Note and this Agreement together with interest thereon.
(g) The Special Servicer or any Master Servicer may, as a condition to granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within its discretion pursuant to the terms of the instruments evidencing or securing the related Serviced Mortgage Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to it (i) as additional servicing compensation, a reasonable or customary fee for the additional services performed in connection with such request, provided such fee would not itself be a "significant modification" pursuant to Treasury Regulations Section 1.1001-3(e)(2) and (ii) any related costs and expenses incurred by it. In no event shall the Special Servicer be entitled to payment for such fees or expenses unless such payment is collected from the related Mortgagor.
(h) The Master Servicers and the Special Servicer shall notify each other, the Trustee, the Controlling Class Representative and, in the case of a Serviced Loan Combination, the related Non-Trust Loan Holder(s), in writing, of any modification, waiver or amendment of any term of any Serviced Mortgage Loan (including fees charged the Mortgagor) and the date thereof, and shall deliver to the Custodian for deposit in the related Mortgage File, (in the case of the Special Servicer, with a copy to the applicable Master Servicer’s), an original counterpart of the agreement relating to such modification, waiver or amendment, promptly (and in any event within 10 Business Days) following the execution
Appears in 1 contract
Modifications, Waivers, Amendments and Consents. (a) The applicable Property Manager and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late any payment charges, Prepayment Premiums and Yield Maintenance Charges on, and permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Obligor on or any guarantor Guarantor of, any Serviced Lease or Mortgage Loan for which it is responsiblerequired to service and administer hereunder, and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including Insurers, the lease reviews and lease consents related thereto)Issuers, subjectthe Indenture Trustee, howeverany holder of Notes or any Controlling Party, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further subject to each of the following limitations, conditions and restrictions:.
(i) if an Early Amortization Event has occurred and is continuing, neither the Property Manager nor the Special Servicer will agree to any modification, waiver or amendment of any term of, or take any of the other above referenced actions, with respect to any Lease or Mortgage Loan, without the prior written consent of the Series 2005-1 Insurer; and
(ii) other than as expressly set forth provided in Section Sections 3.02 (with respect to Default Charges and Post3.08, without the prior written consent of the Series 2005-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)1 Insurer, the applicable Master Servicer Property Manager shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts above referenced in this Section 3.20(a) actions, with respect to, to any Serviced Lease or Mortgage Loan or Serviced Pari Passu Companion Loanit is required to service and administer hereunder, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the Property Manager’s good faith and reasonable judgment judgment, would materially reduce the likelihood of the applicable Special Servicer, timely payment of amounts due thereon or would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such any Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or Lease; the applicable Special Servicer reasonably believes that there is a significant risk of such a defaultmay, andhowever, in either case, such modification, waiver, amendment or other action is reasonably likely agree to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts above referenced in this Section 3.20(a) with respect toactions, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool Specially Serviced Asset that would have any such effect, but only if (A) a material default on such Specially Serviced Asset has occurred or, (B) in the Special Servicer’s reasonable and good faith judgment, a default in respect of payment on such Specially Serviced Asset is reasonably foreseeable, and such modification, waiver, amendment or an Adverse Grantor Trust Event other action is reasonably likely to produce a greater recovery to the applicable Issuer on a present value basis than would liquidation; provided, that (x) the limitations, conditions and restrictions set forth in subparagraphs (i) and (ii) shall not apply to any modification, waiver, amendment or other action with respect with to any Lease or Mortgage Loan that is required, without the Grantor Trust Pool (exercise of the applicable Master Servicer and Issuer’s discretion, under the applicable terms of such Lease or Mortgage Loan or that is solely within the control of the related Obligor, (y) notwithstanding the foregoing, neither the Property Manager nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving an Obligor if in their reasonable and good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar and (z) none of the limitations, conditions and restrictions set forth above shall limit the Property Manager’s or the Special Servicer’s ability to terminate any Lease or Mortgage Loan in accordance with the terms thereof; provided, further, that, notwithstanding the foregoing, with respect to certain Mortgage Loans and/or Leases listed on Exhibit I attached hereto, the applicable Insurer shall be liable provided notice of all proposed modifications, waivers or amendments of the terms thereof, and the prior written consent of such Insurer (so long as no Insurer Default shall have occurred and be continuing) shall be required for decisions made under this subsection which any modification, waiver or amendment of any financial or material non-financial term thereof.
(b) The Property Manager and the Special Servicer shall have no liability to the Issuers, the Indenture Trustee, the Insurers, the holders of the Notes or to any other Person if its analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.19(a) would not materially reduce the likelihood of timely payment of amounts due thereon, or that such modification, waiver, amendment or other action is reasonably likely to produce a greater recovery to the applicable Issuer on a present value basis than would an alternative course of action, should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis in accordance with the Servicing Standard in good faith and each of them by the Property Manager or the Special Servicer, as the case may rely on Opinions of Counsel in making such decisions)be;
(vc) The Property Manager and the Special Servicer each may, as a condition to its granting any request by an Obligor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Property Manager’s or Special Servicer’s, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Lease or Mortgage Loan and is permitted by the terms of this Agreement, require that such Obligor pay to it, as additional servicing compensation, a reasonable or customary fee for the additional services performed in connection with such request, together with any related costs and expenses incurred by it; and
(Ad) All modifications, waivers, amendments and other actions entered into or taken in respect of a Lease or Mortgage Loan pursuant to this Section 3.19 shall be in writing. Each of the Property Manager and the Special Servicer shall notify the other such party and the Issuers, the Insurers and the Indenture Trustee, in writing, of any modification, waiver, amendment or other action entered into or taken in respect of any Lease or Mortgage Loan pursuant to this Section 3.19 and the date thereof, and shall deliver to the Custodian for deposit in the event related Lease File or Loan File an original counterpart of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a statethe agreements relating to such modification, political subdivision or authority thereofwaiver, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation amendment or other similar legal proceedingaction, promptly (and in any event within ten (10) Business Days) following the execution thereof. In addition, following any modification, waiver, amendment or other action agreed to by the Property Manager or the Special Servicer pursuant to Section 3.19(a) above, the applicable Master Servicer Property Manager or the applicable Special Servicer, as the case may be, shall apply deliver to the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicableIssuers, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged PropertiesInsurers, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (orIndenture Trustee and, in the case of a Performing Serviced Mortgage Loanthe Special Servicer, consent to the applicable Master Servicer’sProperty Manager, an Officer’s Certificate setting forth in reasonable detail the basis of the determinations made by it pursuant to Section 3.19(a).
Appears in 1 contract
Samples: Property Management and Servicing Agreement (Spirit Finance Corp)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Subject to this Section 3.21, the Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver waiver, forbearance, or amendment of any term of, extend of any Mortgage Loan without the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution consent of the Borrower on Trustee, the Securities Administrator or any guarantor ofCertificateholder. All modifications, waivers, forbearances or amendments of any Mortgage Loan shall be in writing and shall be consistent with Customary Servicing Procedures.
(b) The Servicer shall not agree to enter into, and shall not enter into, any Serviced modification, waiver (other than a waiver referred to in Section 3.13, which waiver, if any, shall be governed by Section 3.13), forbearance or amendment of any term of any Mortgage Loan for which it is responsibleif such modification, and respond to waiver, forbearance, or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictionsamendment would:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced forgive principal owing under such Mortgage Loan or Serviced Pari Passu Companion permanently reduce the interest rate on such Mortgage Loan, that would ;
(xii) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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 grantedthereunder;
(iiiii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion LoanServicer's judgment, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless Loan or reduce the likelihood of timely payment of amounts due thereon; or
(iv) otherwise constitute a material default on such Mortgage Loan has occurred or, "significant modification" within the meaning of Treasury Regulations Section 1.860G-2(b);
(A) the Mortgagor is in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such the Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is such default is, in the judgment of the Servicer, reasonably foreseeable, or and (B) the applicable Special Servicer has reasonably believes determined that there is a significant risk of such a default, and, in either case, such modification, waiver, forbearance or amendment is in the best interests of the Certificateholders in the aggregate. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would (x) effect an exchange or other action reissuance of such Mortgage Loan under Section 1.860G-2(b) of the Treasury Regulations, (y) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions or, (z) extend the final maturity date with respect to any Mortgage Loan in a Loan Group beyond the Final Scheduled Maturity Date for the Certificates in the Related Group. For the avoidance of doubt, a modification, waiver, forbearance, or amendment shall be deemed to be in the best interests of the Certificateholders in the aggregate if the Servicer determines that such modification, waiver, forbearance or amendment is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in increase the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder proceeds of the related Mortgage Loan nor over the amount expected to be collected pursuant to foreclosure. Subject to Customary Servicing Procedures, the Servicer may permit a forbearance for a Mortgage Loan which in the Servicer's judgment is subject to imminent default.
(c) The Servicer may, as a condition to granting any Serviced Pari Passu Companion request by a Mortgagor for consent, modification, waiver, forbearance or amendment, the granting of which is within the Servicer's discretion pursuant to the Mortgage Loan Holder shall gain and is permitted by the terms of this Agreement, require that such Mortgagor pay to the Servicer, as additional Servicing Compensation, a priority over reasonable or customary fee for the additional services performed in connection with such request, together with any other with respect to any paymentrelated costs and expenses incurred by the Servicer, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan amount shall be effected prior to retained by the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;Servicer as additional Servicing Compensation.
(iiid) neither the applicable Master Servicer nor the applicable Special The Servicer shall extend notify the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond Depositor, the earlier Securities Administrator and the Trustee, in writing, of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term ofwaiver, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver forbearance or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) date thereof, and shall deliver to the applicable Special Servicer shall not permit Trustee (or, at the direction of the Trustee, the Custodian) for deposit in the case related Mortgage File, an original counterpart of a Performing Serviced Mortgage Loanthe agreement relating to such modification, consent waiver, forbearance or amendment, promptly (and in any event within ten Business Days) following the execution thereof; provided, however, that if any such modification, waiver, forbearance or amendment is required by applicable law to be recorded, the Servicer (i) shall deliver to the applicable Master Servicer’sTrustee, or the Custodian on the Trustee's behalf, a copy thereof and (ii) shall deliver to the Trustee, or the Custodian on the Trustee's behalf, such document, with evidence of notification upon receipt thereof from the public recording office.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Mortgage 2008-a Trust)
Modifications, Waivers, Amendments and Consents. (a) The applicable Subject to Sections 3.20(b) through 3.20(g) below, the Special Servicer (in may, on behalf of the case Trustee for the benefit of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) Trust Fund, agree to any modification, waiver or amendment of any term of, extend of any Mortgage Loan without the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution consent of the Borrower on Trustee or any guarantor ofCertificateholder.
(b) All modifications, waivers or amendments of any Serviced Mortgage Loan for which it is responsible, shall be in writing and respond to or approve Borrower requests for consent on shall be considered and effected in accordance with the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:Servicing Standard.
(ic) other than Except as expressly set forth provided in 3.20(d) and the last sentence of Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters3.02(a), the applicable Master Servicer Special Servicer, on behalf of the Trustee, shall not agree or consent to any modification, waiver or amendment of any term of, or take of any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would would:
(xi) affect the amount or timing of any related payment of principal, interest or other amount (including Prepayment Premiums, but excluding default interest and amounts payable under such Mortgage Loan, (yas additional servicing compensation) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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 grantedpayable thereunder;
(ii) other than affect the obligation of the related Mortgagor to pay a Prepayment Premium or permit a Principal Prepayment during any period in which the related Mortgage Note prohibits Principal Prepayments;
(iii) except as provided in Sections 3.02, 3.08 and 3.20(eexpressly contemplated by the related Mortgage or pursuant to Section 3.09(d), result in a release of the applicable lien of the Mortgage on any material portion of the related Mortgaged Property without a corresponding Principal Prepayment in an amount not less than the fair market value (as determined by an appraisal by an Independent Appraiser delivered to the Special Servicer shall not agree at the expense of the related Mortgagor and upon which the Special Servicer may conclusively rely) of the property to be released;
(or, iv) in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would otherwise materially impair the security for such Mortgage Loan or reduce the likelihood of timely payment of amounts due thereon.
(d) Notwithstanding Section 3.20(c), but subject to the third paragraph of this Section 3.20(d), the Special Servicer may (i) reduce the amounts owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued interest or any Prepayment Premium, (ii) reduce the amount of the monthly payment on any Specially Serviced Mortgage Loan, unless including by way of a material default on such reduction in the related Mortgage Rate, (iii) forbear in the enforcement of any right granted under any Mortgage Note or Mortgage relating to a Specially Serviced Mortgage Loan has occurred or (iv) accept a principal prepayment on any Specially Serviced Mortgage Loan during any Lockout Period; provided that (A) the related Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or, in the reasonable judgment of the applicable Special Servicer, a such default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or (B) in the applicable sole, good faith judgment of the Special Servicer reasonably believes that there is a significant risk of such a default, and, in either caseServicer, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater modification would increase the recovery on the Mortgage Loan to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a net present value basis (the relevant discounting of anticipated collections amounts that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, performed at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that Rate) and (AC) any such modification, extension, waiver or amendment would not both (1) effect an exchange or reissuance of the payment terms Mortgage Loan under Section 1001 of the Code (and the Treasury regulations promulgated thereunder) and (2) cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC under the Code or result in the imposition of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with tax on "prohibited transactions" or "contributions" after the allocation and payment priorities set forth in Startup Day under the related Mortgage Loan DocumentsREMIC Provisions. In addition, including the related Intercreditor Agreementnotwithstanding Section 3.20(c), it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) but subject to the extent consistent with third paragraph of this Section 3.20(d), the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on any in respect of a Specially Serviced Mortgage Loan if the conditions set forth in the proviso to the prior paragraph are satisfied and the Special Servicer has obtained an appraisal in accordance with the Standards of the Appraisal Institute of the related Mortgaged Property, performed by an Independent Appraiser, in connection with such extension, which appraisal supports the determination of the Special Servicer contemplated by clause (B) of the proviso to the immediately preceding paragraph. In no event will the Special Servicer (i) extend the maturity date of a Mortgage Loan beyond a date beyond the earlier of (A) five that is two years prior to the Rated Final Distribution Date and Date, (ii) extend the maturity date of any Mortgage Loan which has a Mortgage Rate below the prevailing interest rate for comparable loans at the time of such modification as determined by the Special Servicer, unless (A) such Mortgage Loan is a Balloon Loan, (B) the related Mortgagor has failed to make the Balloon Payment at its scheduled maturity and (C) such Balloon Loan is not a Specially Serviced Mortgage Loan (other than by reason of the failure to make its Balloon Payment) and has not been delinquent with respect to a Monthly Payment (other than the Balloon Payment) in the preceding twelve months, in which case the Special Servicer may permit up to three one-year extensions at the existing Mortgage Rate for such Mortgage Loan (provided that such limitation of extensions made at below market rate shall not limit the ability of the Special Servicer to extend the maturity date of any Mortgage Loan at an interest rate at or in excess to the prevailing rate for comparable loans at the time of such modification), (iii) if such the Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) extend the maturity date of such Mortgage Loan beyond a date which is less than 10 years prior to the end expiration of the then-current term of the related such Ground Lease or Space Lease (plus any unilateral options to extend);
Lease; (iv) neither reduce the applicable Mortgage Rate to a rate below the prevailing interest rate for comparable loans at the time of such modification, as determined by the Special Servicer; or (v) defer interest due on any Mortgage Loan in excess of 10% of the Stated Principal Balance of such Mortgage Loan or defer the collection of interest on any Mortgage Loan without accruing interest on such deferred interest at a rate at least equal to the Mortgage Rate of such Mortgage Loan. The determination of the Special Servicer contemplated by clause (B) of the proviso to the first paragraph, and clause (ii) of the third paragraph, of this Section 3.20(d) shall be evidenced by an Officer's Certificate to such effect delivered to the Trustee and the Master Servicer nor and describing in reasonable detail the applicable basis for the Special Servicer's determination. The Special Servicer shall make or permit append to such Officer's Certificate any information including but not limited to income and expense statements, rent rolls, property inspection reports and appraisals that support such determination.
(e) Any payment of interest that is deferred pursuant to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may bepermitted hereunder, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Propertiesnot, for purposes of REMIC qualification hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, then notwithstanding that the terms of such calculation modification, waiver or amendment so permit. The foregoing shall in no way limit the Special Servicer's ability to charge and collect from the Mortgagor costs otherwise collectible under the terms of the value related Mortgage Note and this Agreement together with interest thereon.
(f) The Special Servicer may, as a condition to granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided which is within its discretion pursuant to the Trustee;
(vi) subject to applicable law, terms of the instruments evidencing or securing the related Mortgage Loan Documents and is permitted by the Servicing Standardterms of this Agreement, neither require that such Mortgagor pay to it (i) as additional servicing compensation, a reasonable or customary fee for the applicable Master additional services performed in connection with such request, and (ii) any related costs and expenses incurred by it. In no event shall the Special Servicer nor be entitled to payment for such fees or expenses unless such payment is collected from the applicable related Mortgagor.
(g) The Special Servicer shall permit notify the Master Servicer, any related Sub-Servicers and the Trustee, in writing, of any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all (including fees charged the Mortgagor) and the date thereof, and shall deliver to the Custodian for deposit in the related fees Mortgage File, an original counterpart of the agreement relating to such modification, waiver or amendment, promptly (and expenses are paid by in any event within ten Business Days) following the Borrower;execution thereof. Copies of each agreement whereby any such modification, waiver or amendment of any term of any Mortgage Loan is effected shall be made available for review upon prior request during normal business hours at the offices of the Special Servicer pursuant to Section 3.15(g) hereof.
(viih) If, with respect to any Defeasance Loan, the applicable Special Master Servicer shall receive a notice from the related Mortgagor that it intends to prepay the related Defeasance Loan in accordance with the terms thereof, except as set forth below, the Master Servicer shall (a) promptly respond to such notice in a manner which would require that the Mortgagor pledge Defeasance Collateral in lieu of such prepayment pursuant to the terms of the related Mortgage Note, (b) notify each Rating Agency, the Trustee and the Underwriters in writing of the request to defease a Mortgage Loan and (c) upon the written confirmation from each Rating Agency described in the next paragraph, take such further action as provided in such Mortgage Note to effectuate such pledge, including the purchase and perfection of the Defeasance Collateral in the name of the Trustee, as trustee for the registered holders of Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through Certificates, Series 1998-C2. Notwithstanding the above, the Master Servicer shall not permit a pledge of Defeasance Collateral in lieu of prepayment under a Defeasance Loan if (ori) such defeasance would occur within two years of the Startup Day, (ii) such Defeasance Loan (or any applicable agreement executed in connection with the case related defeasance) provides that the Mortgagor will be liable for any shortfalls from the Defeasance Collateral or otherwise become subjected to recourse liability with respect to the Defeasance Loan, (iii) such defeasance would result in a new Mortgagor on the Defeasance Loan (unless such new Mortgagor is acquiring the Mortgaged Property that was the initial security for the Defeasance Loan), or (iv) any Rating Agency does not confirm in writing to the Master Servicer that the acceptance of a Performing pledge of the Defeasance Collateral in lieu of a full prepayment will not result in a downgrade, withdrawal or qualification of the ratings then assigned by it to any Class of Certificates.
(i) For any Mortgage Loan other than a Specially Serviced Mortgage Loan, consent Loan and subject to the applicable rights of the Special Servicer set forth in this Section 3.20, the Master Servicer’sServicer shall be responsible for any request by a Mortgagor for the consent of the mortgagee for a modification, waiver or amendment of any term with respect to:
(i) Approving routine leasing activity (including any subordination, standstill and attornment agreements) with respect to leases for less than the lesser of (a) 20,000 square feet and (b) 20% of the related Mortgaged Property; and
(ii) Approving a change of the property manager at the request of the related Mortgagor provided that the successor property manager is not affiliated with the Mortgagor and is a nationally or regionally recognized manager of similar properties.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) each may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges capitalize interest on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor of, of any Mortgage Loan or any Serviced Mortgage Companion Loan for which it is responsiblerequired to service and administer hereunder, and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Trustee or any Certificateholder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to Section 3.29(b) and each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Sections 3.02 and 3.08, but subject to Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters3.21(i), the applicable Master Servicer (in such capacity) shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a3.21(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, Loan that would (xA) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loanthereunder, (yB) affect the obligation of the related Mortgagor to pay any Prepayment Premium or permit a Principal Prepayment during any period when the terms of the Mortgage Loan or Serviced Companion Loan prohibit the making of Principal Prepayments or, (C) in the Master Servicer's good faith and reasonable judgment, materially and adversely affect impair the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Actionreduce the likelihood of timely payment of amounts due thereon; provided, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained Servicer, with the consent of the applicable Majority Certificateholder of the Controlling Class, shall have the authority to extend the due date of a Balloon Payment for up to six months (but for no more than two (2) such six month extensions) on any Mortgage Loan with an original term to maturity of five years or less; provided, the Special Servicer (it being understood and agreed that (Ain such capacity) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a3.21(a) with respect to, any a Specially Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of have any related payment of principalsuch effect, interest or other amount payable thereunder orbut only if, in the reasonable judgment of the applicable Special Servicer's reasonable and good faith judgment, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan or Serviced Companion Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, or a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in with respect to the case of a Serviced Loan CombinationWhole Loans, the Certificateholders and the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, Holders on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date)basis, than would liquidation; provided that ;
(Aii) any modification, extension, waiver or amendment of such action taken by the payment terms of any related Serviced Loan Combination Special Servicer shall be structured in accompanied by an Officer's Certificate to such effect and to which is attached the present value calculation which establishes the basis for such determination, a manner so as to copy of which shall be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) delivered to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior Trustee for delivery to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion LoanRating Agencies;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on Stated Maturity Date of any Mortgage Loan to a date or Serviced Companion Loan beyond the earlier of (A) five date that is two years prior to the Rated Final Distribution Date and (B) if such and, in the case of any Mortgage Loan or Serviced Companion Loan that is secured solely by a Mortgage solely Ground Lease, the Master Servicer or primarily on the related Borrower’s leasehold interest in Special Servicer, as the related Mortgaged Propertycase may be, 20 years (or, to the extent consistent with the Servicing Standard, giving shall give due consideration to the remaining term of the related such Ground Lease or Space Lease, ten years) prior to extending the end Stated Maturity Date of the then-current term of the related Ground Lease Mortgage Loan or Space Lease (plus any unilateral options to extend)Serviced Companion Loan;
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a3.21(a) or Section 3.20(h) with respect to, any Mortgage Loan or Serviced Companion Loan Combination that would (A) cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC under the Code or (subject to Section 10.01(f)) result in an Adverse the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day of any such REMIC Event with respect under the REMIC Provisions or (B) cause any Mortgage Loan or Serviced Companion Loan to any REMIC Pool or an Adverse Grantor Trust Event with respect with cease to be a "qualified mortgage" within the Grantor Trust Pool meaning of Section 860G(a)(3) of the Code (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them may the Master Servicer and the Special Servicer shall rely on Opinions opinions of Counsel counsel in making such decisions);
(v) (A) in neither the event of a taking of Master Servicer nor the Special Servicer shall permit any portion of Mortgagor to add or substitute any real property collateral securing for an outstanding Serviced Mortgage Loan by a stateor Serviced Companion Loan, political subdivision or authority thereofwhich collateral constitutes real property, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, unless the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have first determined, in its reasonable and good faith judgment, based upon an Environmental Assessment performed within the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect twelve months prior to such real property to pay down determination (and such additional environmental testing as the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured deems necessary and appropriate) prepared by an interest in real property” within Independent Person who regularly conducts Environmental Assessments (and such additional environmental testing), at the meaning of Section 1.860G-2(b)(7)(ii) or (iii) expense of the Treasury Regulations (taking into account Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property)use, management or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release disposal of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or (ii) the taking of remediation would be required under any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trusteeenvironmental laws and/or regulations;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modificationshall, waiver with respect to a Mortgage Loan or amendment of any term of any Performing Serviced Companion Loan, other than a Specially Serviced Mortgage Loan unless all related fees release or substitute any collateral securing an outstanding Mortgage Loan or Serviced Companion Loan except as provided in Sections 3.08 and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s3.09
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Modifications, Waivers, Amendments and Consents. (a) The Subject to Sections 3.20(b) through 3.20(m) below and further subject to Sections 3.08(b) and 6.11 and further subject to any applicable Special Servicer (in intercreditor agreement or similar agreement, the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (to the extent provided in Section 3.02(a) and Section 3.20(i) below) and the case Special Servicer may, on behalf of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) Trustee, agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible(including, and respond subject to or approve Borrower requests for consent on the part of the mortgagee (including Section 3.20(i), the lease reviews and lease consents related thereto) without the consent of the Trustee or any Certificateholder.
(b) All modifications, waivers or amendments of any Mortgage Loan (including, subject to Section 3.20(i), subjectthe lease reviews and lease consents related thereto) shall be in writing and shall be considered and effected in accordance with the Servicing Standard; provided, however, to Sections 3.08, 3.24, 3.26, and/or 3.28that neither the Master Servicer nor the Special Servicer, as applicable, andshall make or permit or consent to, in the case as applicable, any modification, waiver or amendment of each any term of any Mortgage Loan not otherwise permitted by this Section 3.20 that would constitute a "significant modification" of such Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b). (c) Except as provided in a Serviced Loan Combination, to 3.20(d) and the rights last sentence of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters3.02(a), the applicable Master Servicer Special Servicer, on behalf of the Trustee, shall not agree or consent to any modification, waiver or amendment of any term of, or take of any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would would:
(xi) affect the amount or timing of any related payment of principal, interest or other amount (including Prepayment Premiums or Yield Maintenance Charges, but excluding Penalty Interest and amounts payable under such Mortgage Loan, (yas additional servicing compensation) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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 grantedpayable thereunder;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), affect the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any obligation of the other acts referenced related Mortgagor to pay a Prepayment Premium or Yield Maintenance Charge or permit a Principal Prepayment during any period in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in which the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion LoanNote prohibits Principal Prepayments;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured except as expressly contemplated by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged PropertyMortgage or pursuant to Section 3.09(d), 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the Mortgage on any material portion of the related Mortgage Mortgaged Property without a corresponding Principal Prepayment in an amount not less than the fair market value (as determined by an appraisal by an Independent Appraiser delivered to the Special Servicer at the expense of the related Mortgagor and upon which the Special Servicer may conclusively rely) of the property to be released other than in connection with a defeasance) or (ii) the taking of any portion all or part of a the related Mortgaged Property or REO Property for not less than fair market value by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer condemnation or Special Servicer, as applicable, casualty or hazard losses with respect to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining such Mortgaged Property or Mortgaged Properties REO Property;
(iv) if such Mortgage Loan is equal to or the fair market value in excess of 5% of the real property constituting then aggregate current principal balances of all Mortgage Loans or $35,000,000 (or, with respect to Moody's, $25,000,000), or is one of the remaining ten largest Mortgage Lxxxx xx Stated Principal Balance as of such date, permit the transfer or transfers of (A) the related Mortgaged Property or Mortgaged Propertiesany interest therein or (B) equity interests in the borrower or any equity owner of the borrower that would result, for purposes of REMIC qualification in the aggregate during the term of the related Mortgage Loan, then such calculation in a transfer greater than 49% of the value total interest in the borrower and/or any equity owner of collateral the borrower or a transfer of voting control in the borrower or an equity owner of the borrower without the prior written confirmation from each Rating Agency that such changes will be solely based not result in the qualification, downgrade or withdrawal to the ratings then assigned to the Certificates;
(v) allow any additional lien on the real property included therein and exclude personal property and going concern valuerelated Mortgaged Property if such Mortgage Loan is equal to or in excess of 2% of the then aggregate current principal balances of the Mortgage Loans or $20,000,000, if anyis one of the ten largest Mortgage Loans by Stated Principal Balance as of such date, unless otherwise permitted under or with respect to S&P only, has an aggregate Loan-to-Value Ratio that is equal to or greater than 85% or has an aggregate Debt Service Coverage Ratio that is less than 1.20x, without the applicable REMIC rules prior written confirmation from each Rating Agency (as evidenced by an Opinion of Counsel provided applicable) that such change will not result in the qualification, downgrade or withdrawal or the ratings then assigned to the Trustee;Certificates; or
(vi) subject to applicable lawin the reasonable, good faith judgment of the related Special Servicer, otherwise materially impair the security for such Mortgage Loan Documents and or reduce the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment likelihood of any term timely payment of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’samounts due thereon.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wachovia Commercial Mortgage Securities Inc)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Penalty Interest and Additional Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower Mortgagor on or any guarantor of, any Serviced Mortgage Loan, and/or provide consents with respect to any leasing activity at a Mortgaged Property securing any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for without the consent on the part of the mortgagee (including Trustee or any Certificateholder; provided that the lease reviews and lease consents related thereto), subject, however, Special Servicer's right to Sections do so shall be subject to Section 3.08, 3.24, 3.26, and/or 3.28, as applicable, Section 6.11 and Section 6.12 (and, in the case of each Mortgage Loan in a Serviced Loan Combination, subject to the rights terms of third parties set forth in the related Loan Combination Intercreditor Agreement, ) and, further further, to each of the following limitations, conditions and restrictions:subsections of this Section 3.20.
(ib) other than as expressly set forth All modifications, waivers or amendments of any Serviced Mortgage Loan shall be in Section 3.02 (writing and shall be considered and effected in accordance with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Servicing Standard. Neither the Master Servicer nor the Special Servicer, as applicable, shall not agree to make or permit or consent to, as applicable, any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would result in an Adverse REMIC Event. The Master Servicer or Special Servicer shall determine and may conclusively rely on an Opinion of Counsel (xwhich Opinion of Counsel shall be an expense of the Trust Fund to the extent not paid by the related Mortgagor) to the effect that such modification, waiver or amendment would not (1) effect an exchange or reissuance of the Serviced Mortgage Loan under Treasury Regulations Section 1.860G-2(b) of the Code, (2) cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions, or (3) adversely affect the status of any of Grantor Trust A-3FL, Grantor Trust A-4FC or Grantor Trust Z under the Code.
(c) The Special Servicer, on behalf of the Trust Fund, may agree or consent to (or permit the Master Servicer to agree or consent to) any modification, waiver or amendment of any term of any Serviced Mortgage Loan that would:
(i) affect the amount or timing of any related payment of principal, interest or other amount (including Prepayment Premiums or Yield Maintenance Charges, but excluding Penalty Interest and amounts payable under such Mortgage Loanas additional servicing compensation) payable thereunder- (including, (y) materially and adversely affect subject to the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely discussion in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of following paragraph, any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicablerelated Balloon Payment), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days ; or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided affect the obligation of the related Mortgagor to pay a Prepayment Premium or Yield Maintenance Charge or permit a Principal Prepayment during any period in Sections 3.02, 3.08 and 3.20(e), which the applicable Special Servicer shall not agree to related Mortgage Note prohibits Principal Prepayments; or
(or, iii) in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless Loan or reduce the likelihood of timely payment of amounts due thereon; only if (A) a material default on such the Serviced Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer's judgment, a material default with respect to payment on such the Serviced Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or and (B) the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to the Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(sNon-Trust Noteholder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date)basis, than would liquidation; provided that (A) any . In the case of every other modification, extensionwaiver or amendment, the Special Servicer may conclusively rely on an Opinion of Counsel (which Opinion of Counsel shall be an expense of the Trust Fund to the extent not paid by the related Mortgagor) to the effect that such modification, waiver or amendment would not (1) effect an exchange or reissuance of the payment terms Serviced Mortgage Loan under Treasury Regulations Section 1.860G-2(b) of the Code, (2) cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in the imposition of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with tax on "prohibited transactions" or "contributions" after the allocation and payment priorities set forth in Startup Day under the related Mortgage Loan DocumentsREMIC Provisions, including or (3) adversely affect the related Intercreditor Agreementstatus of Grantor Trust Z under the Code. In addition, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) subject to the extent consistent with third paragraph of this Section 3.20(c), the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on any in respect of a Specially Serviced Mortgage Loan if the conditions set forth in the proviso to the prior paragraph are satisfied and the Special Servicer has obtained an Appraisal of the related Mortgaged Property in connection with such extension, which Appraisal supports the determination of the Special Servicer contemplated by clause (B) of the proviso to the immediately preceding paragraph. In no event will the Master Servicer or Special Servicer (i) extend the maturity date of a Serviced Mortgage Loan beyond a date beyond the earlier of (A) five that is two years prior to the Rated Final Distribution Date and (Bii) if such the Serviced Mortgage Loan is secured by a Ground Lease (and not by the corresponding fee simple interest), extend the maturity date of such Serviced Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, Loan beyond a date which is less than 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten and with the consent of the Controlling Class Representative, 10 years) prior to the end expiration of the then-current term of the related such Ground Lease or Space Lease (plus including any unilateral options to extend);
extend such term. The determination of the Special Servicer contemplated by clause (ivB) neither of the applicable proviso to the first paragraph of this Section 3.20(c) shall be evidenced by an Officer's Certificate to such effect delivered to the Certificate Administrator, the Trustee, the Master Servicer nor and, in the applicable case of a Loan Combination, the related Non-Trust Noteholder(s) and describing in reasonable detail the basis for the Special Servicer's determination. The Special Servicer shall make or permit append to such Officer's Certificate any modificationinformation including but not limited to income and expense statements, waiver or amendment of any term ofrent rolls, or take any of property inspection reports and appraisals that support such determination.
(d) Except as expressly contemplated by the other acts referenced in this Section 3.20(a) with respect to, any related Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to documents, the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not consent to the Master Servicer's releasing, which consent shall be liable for decisions made under this subsection which were made deemed given if not denied in good faith and each of them may rely on Opinions of Counsel in making such decisionswriting within 10 Business Days (or, if the Controlling Class Representative is entitled to object pursuant to Section 6.11);
(v) (A) in the event of a taking of any portion of , any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer except as provided in Section 3.09 or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property3.20(e), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than except in connection with a permitted defeasance) , or (ii) the taking of any portion of except where a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Crossed Loan Group, where such entire Crossed Loan Group) is satisfied, or except in the case of a release of real property collateral provided the Rating Agencies have been notified in writing and, with respect to a Serviced Mortgage Loan that is not a Specially Serviced Mortgage Loan, (A) either (1) such release will not, in the reasonable judgment of the Special Servicer (exercised in accordance with the Servicing Standard), materially and adversely affect the net operating income being generated by or the then-current use of the related Mortgaged Property, or (2) there is a corresponding principal pay down of such Serviced Mortgage Loan in an amount at least equal to the appraised value of the collateral to be released (or substitute real property collateral with an appraised value at least equal to that of the collateral to be released, is delivered), (B) the release does not materially adversely affect the adequacy of the remaining Mortgaged Property (together with any substitute real property collateral), in the reasonable judgment of the Special Servicer (exercised in accordance with the Servicing Standard), as security for the Serviced Mortgage Loan and (C) if the real property collateral to be released has an appraised value in excess of $1,500,000, such release would not, in and of itself, result in an Adverse Rating Event (as confirmed in writing to the Trustee by each Rating Agency).
(e) Notwithstanding anything in this Section 3.20, Section 6.11 or Section 6.12 to the contrary, the Master Servicer shall not be required to seek the consent of, or provide prior notice to, the Special Servicer, any Certificateholder or the Controlling Class Representative or obtain any confirmation of the Certificate ratings from the Rating Agencies in order to approve the following modifications, waivers or amendments of the Serviced Mortgage Loans (but, in the case of the actions described in clauses (iii) and (iv) of this sentence, shall notify the Controlling Class Representative thereof):
(i) approving routine leasing activity with respect to any lease for less than the lesser of (A) 15,000 square feet and (B) 20% of the related Mortgaged Property; provided that (1) no subordination, non-disturbance and attornment agreement (an "SNDA") exists with respect to such lease and (2) no such lease is a Ground Lease; and provided further that the Master Servicer shall not grant or approve (but shall forward to the Special Servicer for its approval) any request for (or any waiver, consent, approval, amendment or modification in connection with) an SNDA or approval of a lease that contains an SNDA;
(ii) approving any waiver affecting the timing of receipt of financial statements from any Mortgagor; provided that such financial statements are delivered no less than quarterly and within 60 days of the end of the calendar quarter;
(iii) approving annual budgets for the related Mortgaged Property; provided that no such budget (A) provides for the payment of operating expenses in an amount equal to more than 110% of the amounts budgeted therefor for the prior year or (B) provides for the payment of any material expenses to any affiliate of the Mortgagor (other than the payment of a management fee to any property manager if such management fee is no more than the management fee in effect on the Cut-off Date);
(iv) subject to other restrictions herein regarding Principal Prepayments, waiving any provision of a Serviced Mortgage Loan requiring a specified number of days notice prior to a Principal Prepayment;
(v) approving modifications, consents or waivers (other than those set forth in Section 3.20(c)) in connection with a defeasance permitted by the terms of the related Serviced Mortgage Loan if the Master Servicer receives an Opinion of Counsel (which Opinion of Counsel shall be an expense of the Mortgagor) to the effect that such modification, waiver or consent would not cause either REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in a "prohibited transaction" under the REMIC Provisions;
(vi) approving consents with respect to non-material right-of-ways and non-material easements and consent to subordination of the applicable Master Servicer’srelated Serviced Mortgage Loan to such non-material rights-of-way or easements;
(vii) any non-material modifications, waivers or amendments not provided for in clauses (i) through (vi) above, which are necessary to cure any ambiguities or to correct scrivener's errors in the terms of the related Serviced Mortgage Loan; and
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Trust 2005-Lc1)
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer (as to non-Specially Serviced Mortgage Loans) and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a as to Specially Serviced Mortgage LoanLoans) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (each may, consistent with the Servicing Standard) , agree to any modification, waiver or amendment of any term of, extend forgive or defer the maturity of, defer or forgive payment of interest (including including, without limitation, Default Interest and Excess Interest) on and principal of, defer or forgive late payment charges, charges and Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor of, of any Serviced Mortgage Loan for which it is responsible, required to service and respond to or approve Borrower requests for administer hereunder without the consent on the part of the mortgagee (including the lease reviews and lease consents related thereto)Trustee or any Certificateholder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowersclauses), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine mattersExcess Interest) and Section 3.27 (with respect to Default Charges), neither the applicable Master Servicer nor the Special Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially it is required to service and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan administer hereunder that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of Master Servicer's or the applicable Special Servicer's reasonable judgment, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or reduce the applicable Special Servicer reasonably believes that there is a significant risk likelihood of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case timely payment of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (thereon or, to the extent consistent required by the REMIC Provisions, materially increase, substitute or otherwise alter the collateral for the Mortgage Loan (other than the alteration or construction of improvements thereon) or any guarantee or credit enhancement contract with respect thereto (other than the Servicing Standardsubstitution of a similar commercially available credit enhancement contract); provided, giving due consideration to however, the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit may agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, a Specially Serviced Mortgage Loan that would have any such effect, but only if a material default on such Mortgage Loan has occurred or, in the Special Servicer's reasonable judgment, a default in respect of payment on such Mortgage Loan is reasonably foreseeable, and such modification, waiver, amendment or other action is reasonably likely to produce a greater recovery to Certificateholders (as a collective whole) on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders to be performed at the related Net Mortgage Rate (or, in the case of an ARD Loan after its Anticipated Repayment Date, the related Net Mortgage Rate in effect immediately prior to such Anticipated Repayment Date)), than would liquidation;
(ii) neither the Master Servicer nor the Special Servicer may , in connection with any particular extension, extend the maturity date of any Specially Serviced Mortgage Loan beyond (A) the date which is two (2) years prior to the Rated Final Distribution Date, or (B) the date which is twenty (20) years prior to the expiration date of any related Ground Lease; provided that with respect to (B) in this clause (ii), the Special Servicer may extend the maturity date of a Mortgage beyond a date which is twenty (20) years prior to the expiration of the related Ground Lease if it gives due consideration to the remaining term of such Ground Lease;
(iii) unless the proviso in Section 3.20(a)(i) above applies, neither the Master Servicer nor the Special Servicer, as applicable, shall make or permit or consent to, as applicable, any modification, waiver or amendment of any term of, referenced in this Section 3.20(a) or in Sections 3.08 or 3.20(f) with respect to, any Mortgage Loan not otherwise permitted by this Section 3.20(a) or Serviced Loan Combination in Section 3.08 that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to constitute a "significant modification" of such Mortgage Loan within the Grantor Trust Pool meaning of Treasury Regulations Section 1.860G-2(b) (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them the Master Servicer and the Special Servicer may rely on Opinions of Counsel in making such decisions);
(viv) neither the Master Servicer nor the Special Servicer shall permit any Mortgagor to add or substitute any collateral for an outstanding Mortgage Loan, which additional or substitute collateral constitutes real property, unless (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the Special Servicer, as applicable, shall have first determined in accordance with the Servicing Standard, based upon a Phase I Environmental Assessment (and such additional environmental testing as the Special Servicer deems necessary and appropriate) prepared by an Independent Person who regularly conducts Phase I Environmental Assessments (and such additional environmental testing), at the expense of the Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such additional or substitute collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable environmental laws and/or regulations and (B) the Master Servicer or the Special Servicer, as the case may be, have obtained written confirmation from each Rating Agency that such substitution or addition will not result in the downgrade, qualification (if applicable) or withdrawal of any rating then assigned to any Class of Certificates;
(v) neither the Master Servicer nor the Special Servicer shall apply release or substitute any collateral securing an outstanding Mortgage Loan (including as part of a substitution of collateral contemplated by (iv) above), except in connection with a payment in full or a defeasance pursuant to the Condemnation Proceeds (terms of the related Mortgage Loan or, subject to the other provisions of this Section 3.20, a discounted payoff of such Mortgage Loan; or other similar awardexcept as provided in Section 3.09(d); or except where Section 3.20(a)(iii) applies and the net proceeds from Rating Agencies have been notified in writing and (A) either (1) the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance use of the Serviced Mortgage Loancollateral to be released will not, unless immediately after in the release of such portion of the real property collateral, the applicable Master Servicer Servicer's or the applicable Special Servicer's, as the case may be, reasonably believes that reasonable judgment, materially and adversely affect the Serviced Net Operating Income being generated by or the use of the related Mortgaged Property, or (2) there is a corresponding principal paydown of such Mortgage Loan would remain “principally secured by in an interest in real property” within amount at least equal to, or a delivery of substitute collateral with an appraised value at least equal to, the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the appraised value of the real property continuing collateral to secure such Serviced Mortgage Loan after any restoration of such real property)be released, or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a remaining Mortgaged Property from and any substitute collateral is, in the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer Servicer's or Special Servicer's, as the case may be, reasonable judgment, adequate security for the remaining Mortgage Loan and (C) if the real property collateral that is being released has an Appraised Value in excess of $3,000,000, or if any substitution of real property collateral is to be made, the Rating Agencies have each confirmed in writing that such release and/or substitution would not result in the downgrade, qualification (if applicable) or withdrawal of the rating then assigned by Xxxxx'x and/or S&P, as applicable, to calculate (any Class of Certificates or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of except as specifically required under the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the TrusteeLoan document;
(vi) subject Except to applicable lawthe extent the Special Servicer determines that a modification, waiver or amendment is required for the related Mortgage Loan Documents and best interests of all Certificateholders in accordance with the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit not agree to any modification, waiver or amendment of any term of, or take any of the other actions referenced in this Section 3.20(a), with respect to any Performing Specially Serviced Mortgage Loan unless all related fees and expenses are paid if such action would not be generally consistent with the Asset Status Report approved by the Borrower;Directing Certificateholder or the Certificateholders, as applicable, in accordance with Section 3.21, unless it shall have proposed such action to the Directing Certificateholder in the same manner as the Asset Status Report as provided in the second paragraph of Section 3.21(d).
(viia) in respect of any Mortgage Loan that either occurs automatically, or results from the applicable exercise of a unilateral option by the related borrower within the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage Loan in effect on the Closing Date, and (2) notwithstanding clauses (i) through (vi) above, neither the Master Servicer nor the Special Servicer shall be required to oppose the confirmation of a plan in any bankruptcy or similar proceeding involving a Mortgagor if in their reasonable judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(b) Neither the Master Servicer nor the Special Servicer shall have any liability to the Trust, the Certificateholders or any other Person if its analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20
(a) is reasonably likely to produce a greater recovery to Certificateholders on a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis by the Special Servicer or the Master Servicer, as applicable, consistent with the Servicing Standard. Each such determination shall be evidenced by an Officer's Certificate to such effect to be delivered by the Special Servicer to the Directing Certificateholder and the Trustee. The Special Servicer shall include with any such Officer's Certificate the supporting documentation forming the basis for its conclusion.
(c) Any payment of interest which is deferred pursuant to Section 3.20(a) shall not, for purposes hereof, including, without limitation, calculating monthly distributions to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit or that such interest may actually be capitalized.
(d) The Master Servicer (as to non-Specially Serviced Mortgage Loans) and the Special Servicer (as to Specially Serviced Mortgage Loans) each may, as a condition to its granting any request by a Mortgagor for consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within the Master Servicer's or Special Servicer's, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the related Mortgage Loan and is permitted by the terms of this Agreement, require that such Mortgagor pay to it, as additional servicing compensation, a reasonable fee relating to such consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid principal balance of the related Mortgage Loan) for the additional services performed in connection with such request, together with any related costs and expenses incurred by it; provided that the charging of such fees would not otherwise constitute a "significant modification" of the Mortgage Loan pursuant to Treasury Regulation Section 1.860G-2(b).
(e) All modifications, waivers, amendments and other actions entered into or taken in respect of the Mortgage Loans pursuant to the preceding subsections of this Section 3.20 shall be in writing. Each of the Master Servicer and the Special Servicer shall notify the other such party, the Directing Certificateholder and the Trustee, in writing, of any modification, waiver, amendment or other action entered into or taken in respect of any Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall deliver to the Trustee or the related Custodian for deposit in the related Mortgage File (with a copy to the other such party), an original counterpart of the agreement relating to such modification, waiver, amendment or other action, promptly (and in any event within 10 Business Days) following the execution thereof. In addition, following the execution of any modification, waiver or amendment agreed to by the Special Servicer pursuant to Section 3.20(a) above, the Special Servicer shall deliver to the Master Servicer and the Trustee an Officer's Certificate setting forth in reasonable detail the basis of the determination made by it pursuant to clause (i) of Section 3.20(a).
(f) With respect to any ARD Loan after its Anticipated Repayment Date, the Master Servicer (or, in if the case of ARD Loan is a Performing Specially Serviced Mortgage Loan, consent the Special Servicer) shall be permitted, in its discretion, to waive (such waiver to be in writing addressed to the applicable related Mortgagor, with a copy to the Trustee) all or any accrued Excess Interest if, prior to the related maturity date, the related Mortgagor has requested the right to prepay the Mortgage Loan in full together with all payments required by the Mortgage Loan in connection with such prepayment except for all or a portion of accrued Excess Interest; provided, that the Master Servicer’s's (or, if the ARD Loan is a Specially Serviced Mortgaged Loan, the Special Servicer's) determination to waive the right to such accrued Excess Interest is reasonably likely to produce a greater payment to Certificateholders on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders to be performed at the related Net Mortgage Rate in effect immediately prior to the related Anticipated Repayment Date) than a refusal to waive the right to such Excess Interest; provided, further, that such waiver shall not be effective prior to the tender of such prepayment in full and such Excess Interest shall remain due if such tender does not occur. The Master Servicer (or, if the ARD Loan is a Specially Serviced Mortgage Loan, the Special Servicer) will have no liability to the Trust, the Certificateholders or any other person so long as such determination is based on such criteria.
(g) The Master Servicer shall not be required to seek the consent of the Special Servicer or any Certificateholder or obtain any confirmation of the Certificate ratings from the Rating Agencies in order to approve the following modifications, waivers or amendments of the Mortgage Loans: (i) waivers of minor covenant defaults (other than financial covenants), including late financial statements; (ii) releases of non-material parcels of a Mortgaged Property; and (iii) grants of easements that do not materially affect the use or value of a Mortgaged Property or a borrower's ability to make any payments with respect to the related Mortgage Loan; provided that any such modification, waiver or amendment (w) would not in any way affect a payment term of the Certificates, (x) would not constitute a "significant modification" of such Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event, (y) agreeing to such modification, waiver or amendment would be consistent with the Servicing Standard, and (z) agreeing to such modification, waiver or amendment shall not violate the terms, provisions or limitations of this Agreement or any other document contemplated hereby.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc of America Commercial Mortgage Inc)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in Subject to Sections 3.20(b) through 3.20(m) below and further subject to Sections 3.08(b) and 6.11, the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (to the extent provided in Section 3.20(i) below) and the case Special Servicer may, on behalf of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) Trustee, agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible(including, and respond subject to or approve Borrower requests for consent on the part of the mortgagee (including Section 3.20(i), the lease reviews and lease consents related thereto)) without the consent of the Trustee or any Certificateholder.
(b) All modifications, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case waivers or amendments of each any Mortgage Loan in a Serviced Loan Combination(including, subject to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters3.20(i), the applicable Master Servicer lease reviews and lease consents related thereto) shall be in writing and shall be considered and effected in accordance with the Servicing Standard.
(c) Except as provided in 3.20(d) and the last sentence of Section 3.02(a), the Special Servicer, on behalf of the Trustee, shall not agree or consent to any modification, waiver or amendment of any term of, or take of any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would would:
(xi) affect the amount or timing of any related payment of principal, interest or other amount (including Prepayment Premiums or Yield Maintenance Charges, but excluding Penalty Interest and amounts payable under such Mortgage Loan, (yas additional servicing compensation) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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 grantedpayable thereunder;
(ii) other than affect the obligation of the related Mortgagor to pay a Prepayment Premium or Yield Maintenance Charge or permit a Principal Prepayment during any period in which the related Mortgage Note prohibits Principal Prepayments;
(iii) except as provided in Sections 3.02, 3.08 and 3.20(eexpressly contemplated by the related Mortgage or pursuant to Section 3.09(d), result in a release of the applicable lien of the Mortgage on any material portion of the related Mortgaged Property without a corresponding Principal Prepayment in an amount not less than the fair market value (as determined by an appraisal by an Independent Appraiser delivered to the Special Servicer shall not agree at the expense of the related Mortgagor and upon which the Special Servicer may conclusively rely) of the property to be released; or
(oriv) if such Mortgage Loan is equal to or in excess of 5% of the then aggregate current principal balances of all Mortgage Loans or $20,000,000, permit the transfer or transfers of equity interests in the borrower or any equity owner of the borrower that would result, in the case aggregate during the term of a Performing Serviced the related Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent in a transfer greater than 49% of the total interest in the borrower and/or any equity owner of the borrower or a transfer of voting control in the borrower of an equity owner of the borrower without the prior written confirmation from each Rating Agency that such changes will not result in the qualification, downgrade or withdrawal to the applicable Master Servicer’s agreeing toratings then assigned to the Certificates; or
(v) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loanreasonable, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable good faith judgment of the applicable Special Servicer, would otherwise materially impair the security for such Mortgage Loan or reduce the likelihood of timely payment of amounts due thereon.
(d) Notwithstanding Section 3.20(c), but subject to the third paragraph of this Section 3.20(d), and the rights of the Controlling Class Representative set forth in Section 6.11, the Special Servicer may (i) reduce the amounts owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued interest or any Prepayment Premium or Yield Maintenance Charge, (ii) reduce the amount of the Periodic Payment on any Specially Serviced Mortgage Loan, unless including by way of a material default on such reduction in the related Mortgage Rate, (iii) forbear in the enforcement of any right granted under any Mortgage Note or Mortgage relating to a Specially Serviced Mortgage Loan has occurred or (iv) accept a Principal Prepayment on any Specially Serviced Mortgage Loan during any Lockout Period; provided that (A) the related Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or, in the reasonable reasonable, good faith judgment of the applicable Special Servicer, a such default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or (B) in the applicable reasonable, good faith judgment of the Special Servicer reasonably believes that there is a significant risk of such a default, and, in either caseServicer, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater modification would increase the recovery on the Mortgage Loan to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a net present value basis (the relevant discounting of anticipated collections amounts that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, performed at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that Rate) and (AC) any such modification, extension, waiver or amendment would not both (1) effect an exchange or reissuance of the payment terms Mortgage Loan under Section 1001 of the Code (and the Treasury regulations promulgated thereunder) and (2) cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC under the Code or result in the imposition of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with tax on "prohibited transactions" or "contributions" after the allocation and payment priorities set forth in Startup Day under the related Mortgage Loan DocumentsREMIC Provisions. In addition, including the related Intercreditor Agreementnotwithstanding Section 3.20(c), it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) but subject to the extent consistent with third paragraph of this Section 3.20(d), the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on any in respect of a Specially Serviced Mortgage Loan to a date beyond if the earlier of (A) five years prior conditions set forth in the proviso to the Rated Final Distribution Date prior paragraph are satisfied and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest Special Servicer has obtained an appraisal in accordance with the standards of the Appraisal Institute of the related Mortgaged Property, 20 years (orperformed by an Independent Appraiser, to in connection with such extension, which appraisal supports the extent consistent with the Servicing Standard, giving due consideration to the remaining term determination of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool contemplated by clause (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iiiB) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided proviso to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’simmediately preceding paragraph.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Union Commercial Mortgage Securities Inc)
Modifications, Waivers, Amendments and Consents. (a) The Subject to Sections 3.20(b) through 3.20(j) below and to Section 3.08(b), Section 6.11, Section 6.12, Section 6.13 and Section 6.14, and further subject to any applicable Special Servicer intercreditor, co-lender or similar agreement (in the case of including, with respect to a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or Combination, the related Co-Lender Agreement), the applicable Master Servicer (to the extent provided in Section 3.02(a) and Section 3.20(h) below) and the case Special Servicer may, on behalf of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) Trustee, agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible(including, and respond subject to or approve Borrower requests for consent on the part of the mortgagee (including Section 3.20(h), the lease reviews and lease consents related thereto) without the consent of the Trustee or any Certificateholder. Neither a Master Servicer nor the Special Servicer (in its respective capacity as such) may agree with the related Mortgagor to any modification, extension, waiver or amendment of an Outside Serviced Trust Mortgage Loan.
(b) All modifications, waivers or amendments of any Serviced Mortgage Loan (including, subject to Section 3.20(h), subjectthe lease reviews and lease consents related thereto) shall be in writing and shall be considered and effected in accordance with the Servicing Standard; provided, however, to Sections 3.08, 3.24, 3.26, and/or 3.28that neither a Master Servicer nor the Special Servicer, as applicable, andshall make or permit or consent to, in the case as applicable, any modification, waiver or amendment of each any term of any Serviced Mortgage Loan not otherwise permitted by this Section 3.20 that would constitute a "significant modification" of such Serviced Mortgage Loan within the meaning of Treasury regulations section 1.860G-2(b).
(c) Except as provided in Section 3.20(d) and the last sentence of Section 3.02(a), neither a Serviced Loan CombinationMaster Servicer nor the Special Servicer, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each on behalf of the following limitationsTrustee, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters), the applicable Master Servicer shall not agree or consent to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would would:
(xi) affect the amount or timing of any related payment of principal, interest or other amount (including Prepayment Premiums or Yield Maintenance Charges, but excluding Penalty Interest, late payment charges and amounts payable under as additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a Prepayment Premium or Yield Maintenance Charge or permit a Principal Prepayment during any period in which the related Mortgage Note prohibits Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or pursuant to Section 3.09(d), result in a release of the lien of the Mortgage on any material portion of the related Mortgaged Property without a corresponding Principal Prepayment in an amount not less than the fair market value (as determined by an appraisal by an Independent Appraiser delivered to the Special Servicer at the expense of the related Mortgagor and upon which the Special Servicer may conclusively rely) of the property to be released (other than in connection with a taking of all or part of the related Mortgaged Property or REO Property for not less than fair market value by exercise of the power of eminent domain or condemnation or casualty or hazard losses with respect to such Mortgaged Property or REO Property); or
(iv) except as provided in Section 3.08, permit the transfer or transfers of (A) the related Mortgaged Property or any interest therein or (B) equity interests in the Mortgagor or any equity owner of the Mortgagor that would result, in the aggregate during the term of the related Trust Mortgage Loan, in a transfer greater than 49% of the total interest in the subject Mortgagor and/or any equity owner of the related Mortgagor or a transfer of voting control in the related Mortgagor or an equity owner of the related Mortgagor;
(yv) except as provided in Section 3.08, permit the further encumbrance of the related Mortgaged Property with additional debt; or
(vi) in the reasonable, good faith judgment of the Special Servicer, otherwise materially and adversely affect impair the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan reduce the likelihood of timely payment of amounts due thereon.
(d) Notwithstanding Section 3.20(c), but subject to Section 6.11, Section 6.12, Section 6.13, Section 6.14 and the third paragraph of this Section 3.20(d) and any applicable co-lender, intercreditor or similar agreement, including any related Co-Lender Agreement, the Special Servicer may (zi) constitute a Material Action, unless (solely in reduce the case of a Performing amounts owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued interest or Performing Serviced Pari Passu Companion Loanany Prepayment Premium or Yield Maintenance Charge, (ii) reduce the applicable Master Servicer has obtained the consent amount of the applicable Special Servicer Periodic Payment on any Specially Serviced Mortgage Loan, including by way of a reduction in the related Mortgage Rate, (it being understood and agreed iii) forbear in the enforcement of any right granted under any Mortgage Note or Mortgage relating to a Specially Serviced Mortgage Loan, (iv) extend the maturity date of any Specially Serviced Mortgage Loan, or (v) accept a Principal Prepayment on any Specially Serviced Mortgage Loan during any Lockout Period; provided that (A) the applicable Master Servicer shall promptly provide the applicable Special Servicer related Mortgagor is in default with (x) written notice of any Borrower request for such modification, waiver or amendment, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available respect to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Specially Serviced Mortgage Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loanreasonable, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable good faith judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or and (B) in the applicable reasonable, good faith judgment of the Special Servicer reasonably believes that there is a significant risk of such a default, and, in either caseServicer, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater modification would increase the recovery on the Serviced Mortgage Loan to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)), as a collective whole, on a net present value basis (the relevant discounting of anticipated collections amounts that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, performed at the related Net Mortgage Rate immediately prior Rate). In the case of every other modification, waiver or consent, the Special Servicer shall determine and may rely on an Opinion of Counsel (which Opinion of Counsel shall be an expense of the Trust Fund to the Anticipated Repayment Date), than would liquidation; provided extent not paid by the related Mortgagor) to the effect that (A) any such modification, extension, waiver or amendment would not both (1) effect an exchange or reissuance of the payment terms Serviced Mortgage Loan under Treasury regulation section 1.860G-2(b) of the Code and (2) cause any REMIC Pool to fail to qualify as a REMIC under the Code or result in the imposition of any related Serviced Loan Combination shall be structured in a manner so as tax on "prohibited transactions" or "contributions" after the Startup Day under the REMIC Provisions. In addition, notwithstanding Section 3.20(c), but subject to be consistent with Section 6.11, Section 6.12, Section 6.13, Section 6.14, the allocation third paragraph of this Section 3.20(d) and payment priorities set forth in the related Mortgage Loan Documentsany applicable co-lender, intercreditor or similar agreement, including the any related Intercreditor Co-Lender Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of (A) five years prior to the Rated Final Distribution Date and (B) if such Mortgage Loan is secured by a Mortgage solely or primarily on the related Borrower’s leasehold interest in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term of the related Ground Lease or Space Lease, ten years) prior to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend);
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Mortgage Loan or Serviced Loan Combination that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect with to the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them may rely on Opinions of Counsel in making such decisions);
(v) (A) in the event of a taking of any portion of any real property collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect to such real property to pay down the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured by an interest in real property” within the meaning of Section 1.860G-2(b)(7)(ii) or (iii) of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property), or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trustee;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’sSpecially
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CD 2007-Cd4 Commercial Mortgage Trust)
Modifications, Waivers, Amendments and Consents. (a) The applicable Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) may (consistent with the Servicing Standard) ), but the Servicer may not, agree to any modification, waiver or amendment of any term of, extend the maturity ofdate on which the Balloon Payment is scheduled to be paid for a period not to exceed one year after the Maturity Date; provided, defer or forgive interest (including Default Interest) on that the Special Servicer's right to do so shall be subject to -------- Sections 3.08 and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution of the Borrower on or any guarantor of, any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews and lease consents related thereto), subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, 3.24 and, in the case of each Mortgage Loan in a Serviced Loan Combinationfurther, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, ------------- ---- conditions and restrictions:
(i) other than as expressly set forth provided in Section Sections 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters)3.08, the applicable Master Special ------------- ---- Servicer shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan, that would (x) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loan, (y) materially and adversely affect the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) the applicable Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (A) --------------- the applicable Master Servicer shall promptly provide Borrower is in material default in respect of the applicable Mortgage Loan or, in the sole discretion of the Special Servicer with (x) written notice Servicer, exercised in good faith, a default in respect of any Borrower request for such modification, waiver or amendment, (y) payment on the applicable Master Servicer’s written recommendations and analysis, and (z) all information Mortgage Loan is reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consentforeseeable, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of any related payment of principal, interest or other amount payable thereunder or, in the reasonable judgment of the applicable Special Servicer, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, a default with respect to payment on such Mortgage Loan or Serviced Pari Passu Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s))Certificateholders, as a collective whole, on a present value basis than would liquidation, and (C) the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but has obtained the consent of the Controlling Class Representative as provided in Section 3.24. ------------
(ii) in no event less than shall the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date), than would liquidation; provided that Special Servicer (A) any modification, extension, waiver or amendment of the payment terms of any related Serviced Loan Combination shall be structured in a manner so as to be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion Loan;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall extend the date on which any the Balloon Payment is scheduled to be due on any Mortgage Loan to a date beyond the earlier of five (A5) five years prior to the Rated Final Distribution Date and without the consent of the Holders of Certificates representing 100% of the Voting Rights, (B) if such extend the date on which the Balloon Payment is scheduled to be due by a period of up to one year unless the Special Servicer has obtained an Appraisal of the Mortgaged Properties from a Qualified Appraiser, which Appraisal supports the determination of the Special Servicer described in clause (i)(B) above, and the consent of the Holders of Certificates representing a majority of the Voting Rights allocated to the Controlling Class is obtained or (C) reduce any Component Interest Rate, forgive or delay any payment of interest (other than Default Interest) or principal, or forbear the enforcement of any material right granted under the Mortgage Loan is secured by a Mortgage solely or primarily on unless Holders of 66 2/3% of the related Borrower’s leasehold interest Voting Rights in the related Mortgaged Property, 20 years (or, to the extent consistent with the Servicing Standard, giving due consideration to the remaining term aggregate and 90% of the related Ground Lease or Space Lease, ten years) prior Voting Rights of each Class affected by such action consent to the end of the then-current term of the related Ground Lease or Space Lease (plus any unilateral options to extend)such reduction;
(iviii) neither the applicable Master Servicer nor the applicable Special Servicer shall not make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a) with respect to, any the Mortgage Loan or Serviced Loan Combination that would result in an --------------- Adverse REMIC Event with respect to any the REMIC Pool or an Adverse Grantor Trust Event with respect with to (it being acknowledged and agreed that the Grantor Trust Pool (the applicable Master Servicer and the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and each of them accordance with the Servicing Standard; and, unless it would be contrary to the Servicing Standard to do so, the Special Servicer may rely on Opinions of Counsel (at the expense of the Trust Fund to the extent the cost thereof is not paid by the Borrower following reasonable efforts by the Special Servicer to condition any such act on the payment by the Borrower of the cost of such opinion and/or demand payment thereof by the Borrower) in making such decisions);
(viv) the Special Servicer shall not permit the Borrower to add or substitute any real estate collateral for the Mortgage Loan unless the Special Servicer shall have first (A) determined, in its reasonable judgment, based upon a Phase I Environmental Assessment (and any additional environmental testing that the event Special Servicer deems necessary and prudent) conducted by an Independent Person who regularly conducts Phase I Environmental Assessments, at the expense of a taking of any portion of any real property the Borrower, that such additional or substitute collateral securing an outstanding Serviced Mortgage Loan by a state, political subdivision is in compliance with applicable Environmental Laws and regulations and that there are no circumstances or authority thereof, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement conditions present with respect to such new collateral relating to the use, management or disposal of any Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or remediation would be required under any then applicable Environmental Laws or regulations and (B) received written confirmation from each Rating Agency that such addition or substitution of such real property estate collateral will not, in and of itself, result in an Adverse Rating Event with respect to pay down any Class of Regular Certificates; and
(v) the principal balance of Special Servicer shall not release, including in connection with a substitution contemplated by clause (iv) above, any collateral securing ----------- the Serviced outstanding Mortgage Loan, unless immediately after except as provided in Section 3.09(d), or except --------------- where the Mortgage Loan is satisfied, or except in the case of a release of such portion where (A) either (1) the use of the real property collateralcollateral to be released will not, in the applicable Master Servicer Special Servicer's reasonable judgment, materially and adversely affect the Net Operating Income being generated by or the applicable use of the related Mortgaged Property, or (2) there is a corresponding principal pay down of the Mortgage Loan in an amount equal to at least 125% of the Allocated Loan Amount for the collateral to be released (or substitute collateral with an appraised value at least equal to that of the collateral to be released, is delivered), (B) the remaining Mortgaged Properties (together with any substitute collateral) are, in the Special Servicer's reasonable judgment, as adequate security for the case may be, reasonably believes that the Serviced remaining Mortgage Loan and (C) such release would remain “principally secured not, in and of itself, result in an Adverse Rating Event with respect to any Class of Regular Certificates (as confirmed in writing to the Trustee by an interest each Rating Agency); provided, that (x) the limitations, conditions and restrictions set forth in real property” -------- clauses (i) through (v) above shall not apply to any act or event (including, ----------- --- without limitation, a release, substitution or addition of collateral) in respect of the Mortgage Loan that either occurs automatically by its terms, or results from the exercise of a unilateral option by the Borrower within the meaning of Treasury Regulations Section 1.860G-2(b)(7)(ii) or (iii) 1.1001-3(c)(2)(iii), in any event under the terms of the Treasury Regulations (taking into account the value of the real property continuing to secure such Serviced Mortgage Loan after in effect on the Settlement Date, and (y) notwithstanding clauses (i) through (v) above, the Special Servicer shall ----------- --- not be required to oppose the confirmation of a plan in any restoration bankruptcy or similar proceeding involving a Borrower, if in its reasonable judgment, such opposition would not ultimately prevent the confirmation of such real property)plan or one substantially similar.
(b) The Special Servicer shall have no liability to the Trust, the Certificateholders or any other Person if the Special Servicer's analysis and determination that the modification, waiver, amendment or other action contemplated by Section 3.20
(a) is reasonably likely to produce a greater --------------- recovery to Certificateholders (as may collective whole) on a present value basis than would liquidation, should prove to be permitted wrong or incorrect, so long as the analysis and determination were made on a reasonable basis by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Special Servicer and the applicable Special Servicer may each rely on Opinions of Counsel has acted reasonably and complied with the Servicing Standard in making ascertaining the pertinent facts. Each such decisions, the costs of which determination shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) or (ii) the taking of any portion of a Mortgaged Property evidenced by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, an Officer's Certificate to calculate (or approve the calculation such effect to be delivered by the related Borrower ofSpecial Servicer to the Trustee.
(c) the loan-to-value ratio Any payment of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Propertiesinterest, which is deferred pursuant to Section ------- 3.20(a), shall not, for purposes of REMIC qualification calculating monthly distributions and ------- reporting information to Certificateholders, be added to the unpaid principal balance or Stated Principal Balance of the related Mortgage Loan, then such calculation notwithstanding that the terms of the value Mortgage Loan so permit or that such interest may actually be capitalized; provided, however, that this sentence shall not limit the rights of collateral will be solely based -------- ------- the Servicer or the Special Servicer on behalf of the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted Trust to enforce any obligations of the Borrower under the applicable REMIC rules Mortgage Loan.
(d) The Special Servicer may, as evidenced a condition to its granting any request by an Opinion a Borrower for consent, assumption, modification, waiver or indulgence or any other matter or thing, the granting of Counsel provided which is within the Special Servicer's discretion pursuant to the Trustee;
(vi) subject to applicable law, terms of the related instruments evidencing or securing the Mortgage Loan Documents and is permitted by the Servicing Standardterms of this Agreement, neither require that such Borrower pay to it a reasonable or customary fee for the applicable Master Servicer nor additional services performed in connection with such request, together with any related processing fee, application fee and costs and expenses incurred by it. All such fees collected by the applicable Special Servicer shall permit constitute Additional Special Servicing Compensation as provided in Section 3.11. ------------
(e) All modifications, amendments, material waivers and other material actions entered into or taken in respect of the Mortgage Loan pursuant to this Section 3.20 shall be in writing. The Special Servicer shall notify the ------------ Servicer, each Rating Agency, the Trustee and the Controlling Class Representative, in writing, of any modification, waiver, amendment or other action entered into or taken thereby in respect of the Mortgage Loan pursuant to this Section 3.20 and the date thereof, and shall deliver to the Trustee or the ------------ related Custodian for deposit in the Mortgage File (with a copy to the Servicer), an original counterpart of the agreement relating to such modification, waiver, amendment or other action, promptly (and in any event within ten (10) Business Days) following the execution thereof. In addition, following the execution of any modification, waiver or amendment of any term of any Performing Serviced Mortgage Loan unless all related fees and expenses are paid agreed to by the Borrower;
(vii) the applicable Special Servicer pursuant to Section 3.20(a) above, the Special Servicer --------------- shall not permit (ordeliver to the Servicer, the Trustee and the Rating Agencies an Officer's Certificate certifying that all of the requirements of Section 3.20(a) have been --------------- met and -97- setting forth in reasonable detail the case basis of a Performing Serviced the determination made by it pursuant to Section 3.20(a)(i); provided, that if such modification, waiver or ------------------ -------- amendment involves an extension of the maturity of the Mortgage Loan, consent such Officer's Certificate shall be delivered to the applicable Master Servicer’s, the Trustee and the Rating Agencies before the modification, waiver or amendment is agreed to.
(f) In the event that the Servicer receives a request by a Borrower for consent, modification, waiver or indulgence or any other matter or thing, the request of which would require action on the part of the Special Servicer under this Section 3.20, the Servicer shall promptly notify the Special Servicer, in ------------ writing, of such request.
Appears in 1 contract
Modifications, Waivers, Amendments and Consents. (a) The applicable Master Servicer and the Special Servicer (in the case of a Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan) each may (consistent with the Servicing Standard) agree to any modification, waiver or amendment of any term of, extend the maturity of, defer or forgive interest (including Default Interest) on and principal of, defer or forgive late payment charges, Prepayment Premiums and Yield Maintenance Charges capitalize interest on, permit the release, addition or substitution of collateral securing, and/or permit the release, addition or substitution release of the Borrower Mortgagor on or any guarantor of, of any Serviced Mortgage Loan for which it is responsible, and respond to or approve Borrower requests for consent on the part of the mortgagee (including the lease reviews Xxxxxxxx Fashion Center A/B Loan) it is required to service and lease consents related thereto)administer hereunder, without the consent of the Trustee or any Certificateholder, subject, however, to Sections 3.08, 3.24, 3.26, and/or 3.28, as applicable, and, in the case of each Mortgage Loan in a Serviced Loan Combination, to the rights of third parties set forth in the related Intercreditor Agreement, and, further to each of the following limitations, conditions and restrictions:
(i) other than as expressly set forth provided in Sections 3.02 and 3.08, but subject to Section 3.02 (with respect to Default Charges and Post-ARD Additional Interest), Section 3.07 (insurance), Section 3.08 (with respect to due-on-sale and due-on-encumbrance clauses and transfers of interests in Borrowers), Section 3.19(d) (with respect to defeasances), and Section 3.20(f) (with respect to various routine matters3.21(i), the applicable Master Servicer (in such capacity) shall not agree to any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a3.21(a) with respect to, any Serviced Mortgage Loan or Serviced Pari Passu Xxxxxxxx Fashion Center Companion Loan, Loan that would (xA) affect the amount or timing of any related payment of principal, interest or other amount payable under such Mortgage Loanthereunder, (yB) affect the obligation of the related Mortgagor to pay any Prepayment Premium or permit a Principal Prepayment during any period when the terms of the Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan prohibit the making of Principal Prepayments or, (C) in the Master Servicer's good faith and reasonable judgment, materially and adversely affect impair the security for such Serviced Mortgage Loan or Serviced Pari Passu Companion Loan or (z) constitute a Material Action, unless (solely in including the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Xxxxxxxx Fashion Center A/B Loan) or reduce the applicable likelihood of timely payment of amounts due thereon; provided, the Master Servicer has obtained Servicer, with the consent of the applicable Majority Certificateholder of the Controlling Class, shall have the authority to extend the due date of a Balloon Payment for up to one year (but for no more than two (2) such one-year extensions); provided, further, the Special Servicer (it being understood and agreed that (Ain such capacity) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such modification, waiver or amendment, (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, (B) 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 3.26, as applicable), and (C) if any such consent has not been expressly denied within fifteen (15) Business Days (or in connection with an Acceptable Insurance Default, ninety (90) days or, in connection with a Serviced Loan Combination, at least five 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;
(ii) other than as provided in Sections 3.02, 3.08 and 3.20(e), the applicable Special Servicer shall not agree to (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s agreeing to) any modification, waiver or amendment of any term of, or take (or, in the case of a Performing Serviced Mortgage Loan or Performing Serviced Pari Passu Companion Loan, consent to the applicable Master Servicer’s taking) any of the other acts referenced in this Section 3.20(a3.21(a) with respect to, any a Specially Serviced Mortgage Loan or Serviced Pari Passu Companion Loan that would affect the amount or timing of have any related payment of principalsuch effect, interest or other amount payable thereunder orbut only if, in the reasonable judgment of the applicable Special Servicer's reasonable and good faith judgment, would materially impair the security for such Mortgage Loan, unless a material default on such Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan has occurred or, in the reasonable judgment of the applicable Special Servicer, or a default with in respect to of payment on such Mortgage Loan or Serviced Pari Passu Xxxxxxxx Fashion Center Companion Loan at maturity or on an earlier date is reasonably foreseeable, or the applicable Special Servicer reasonably believes that there is a significant risk of such a default, and, in either case, and such modification, waiver, amendment or other action is reasonably likely to produce an equal or a greater recovery to Certificateholders (and, in with respect to the case of a Serviced Loan CombinationXxxxxxxx Fashion Center A/B Loan, the related Serviced Pari Passu Certificateholders and the Xxxxxxxx Fashion Center Companion Loan Holder(s)), as a collective whole, Holders on a present value basis (the relevant discounting of anticipated collections that will be distributable to Certificateholders (and, in the case of a Serviced Loan Combination, the related Serviced Pari Passu Companion Loan Holder(s)) to be done at a rate determined by the applicable Special Servicer but in no event less than the related Net Mortgage Rate (or, in the case of an ARD Mortgage Loan after its Anticipated Repayment Date, at the related Net Mortgage Rate immediately prior to the Anticipated Repayment Date)basis, than would liquidation; provided that ;
(Aii) any modification, extension, waiver or amendment of such action taken by the payment terms of any related Serviced Loan Combination Special Servicer shall be structured in accompanied by an Officer's Certificate to such effect and to which is attached the present value calculation which establishes the basis for such determination, a manner so as to copy of which shall be consistent with the allocation and payment priorities set forth in the related Mortgage Loan Documents, including the related Intercreditor Agreement, it being the intention that neither the Trust as holder of the related Mortgage Loan nor any Serviced Pari Passu Companion Loan Holder shall gain a priority over any other with respect to any payment, which priority is not, as of the date of the related Intercreditor Agreement, reflected in the related Mortgage Loan Documents, including the related Intercreditor Agreement; and (B) delivered to the extent consistent with the Servicing Standard, no waiver, reduction or deferral of any particular amounts due on the related Mortgage Loan shall be effected prior Trustee for delivery to the waiver, reduction or deferral of the entire corresponding item in respect of the related Serviced Pari Passu Companion LoanRating Agencies;
(iii) neither the applicable Master Servicer nor the applicable Special Servicer shall may extend the date on which any Balloon Payment is scheduled to be due on Stated Maturity Date of any Mortgage Loan to a date or Xxxxxxxx Fashion Center Companion Loan beyond the earlier of (A) five date that is two years prior to the Rated Final Distribution Date and (B) if such and, in the case of any Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan that is secured solely by a Mortgage solely Ground Lease, the Master Servicer or primarily on the related Borrower’s leasehold interest in Special Servicer, as the related Mortgaged Propertycase may be, 20 years (or, to the extent consistent with the Servicing Standard, giving shall give due consideration to the remaining term of the related such Ground Lease or Space Lease, ten years) prior to extending the end Stated Maturity Date of the then-current term of the related Ground Lease Mortgage Loan or Space Lease (plus any unilateral options to extend)Xxxxxxxx Fashion Center Companion Loan;
(iv) neither the applicable Master Servicer nor the applicable Special Servicer shall make or permit any modification, waiver or amendment of any term of, or take any of the other acts referenced in this Section 3.20(a3.21(a) or Section 3.20(h) with respect to, any Mortgage Loan or Serviced Loan Combination (including the Xxxxxxxx Fashion Center A/B Loan) that would (A) cause REMIC I, REMIC II or REMIC III (or either of the Countryside Village Apartments REMIC and the Garden Lakes Shopping Center REMIC) to fail to qualify as a REMIC under the Code or (subject to Section 10.01(f)) result in an Adverse the imposition of any tax on "prohibited transactions" or "contributions" after the Startup Day of any such REMIC Event with respect under the REMIC Provisions or (B) cause any Mortgage Loan (including the Xxxxxxxx Fashion Center A/B Loan) to any REMIC Pool or an Adverse Grantor Trust Event with respect with cease to be a "qualified mortgage" within the Grantor Trust Pool meaning of Section 860G(a)(3) of the Code (neither the applicable Master Servicer and nor the applicable Special Servicer shall not be liable for decisions made under this subsection which were made in good faith and and, unless it would constitute bad faith or negligence to do so, each of them the Master Servicer and the Special Servicer may rely on Opinions opinions of Counsel counsel in making such decisions);
(v) (A) in neither the event of a taking of Master Servicer nor the Special Servicer shall permit any portion of Mortgagor to add or substitute any real property collateral securing for an outstanding Serviced Mortgage Loan by a stateor Xxxxxxxx Fashion Center Companion Loan, political subdivision or authority thereofwhich collateral constitutes real property, whether by condemnation, similar legal proceeding or by agreement in anticipation of such condemnation or other similar legal proceeding, unless the applicable Master Servicer or the applicable Special Servicer, as the case may be, shall apply have first determined, in its reasonable and good faith judgment, based upon an Environmental Assessment performed within the Condemnation Proceeds (or other similar award) and the net proceeds from the receipt of any insurance or tort settlement with respect twelve months prior to such real property to pay down determination (and such additional environmental testing as the principal balance of the Serviced Mortgage Loan, unless immediately after the release of such portion of the real property collateral, the applicable Master Servicer or the applicable Special Servicer, as the case may be, reasonably believes that the Serviced Mortgage Loan would remain “principally secured deems necessary and appropriate) prepared by an interest in real property” within Independent Person who regularly conducts Environmental Assessments (and such additional environmental testing), at the meaning of Section 1.860G-2(b)(7)(ii) or (iii) expense of the Treasury Regulations (taking into account Mortgagor, that such additional or substitute collateral is in compliance with applicable environmental laws and regulations and that there are no circumstances or conditions present with respect to such new collateral relating to the value of the real property continuing to secure such Serviced Mortgage Loan after any restoration of such real property)use, management or as may be permitted by Rev. Proc. 2010-30, 2010-36 I.R.B. 316 (the applicable Master Servicer and the applicable Special Servicer may each rely on Opinions of Counsel in making such decisions, the costs of which shall be covered by, and reimbursable as, Servicing Advances) and (B) in connection with (i) the release disposal of any portion of a Mortgaged Property from the lien of the related Mortgage (other than in connection with a defeasance) Hazardous Materials for which investigation, testing, monitoring, containment, clean-up or (ii) the taking of remediation would be required under any portion of a Mortgaged Property by exercise of the power of eminent domain or condemnation, if the Mortgage Loan Documents require the related Master Servicer or Special Servicer, as applicable, to calculate (or approve the calculation by the related Borrower of) the loan-to-value ratio of the remaining Mortgaged Property or Mortgaged Properties or the fair market value of the real property constituting the remaining Mortgaged Property or Mortgaged Properties, for purposes of REMIC qualification of the related Mortgage Loan, then such calculation of the value of collateral will be solely based on the real property included therein and exclude personal property and going concern value, if any, unless otherwise permitted under the applicable REMIC rules as evidenced by an Opinion of Counsel provided to the Trusteeenvironmental laws and/or regulations;
(vi) subject to applicable law, the related Mortgage Loan Documents and the Servicing Standard, neither the applicable Master Servicer nor the applicable Special Servicer shall permit any modificationshall, waiver with respect to a Mortgage Loan or amendment of any term of any Performing Xxxxxxxx Fashion Center Companion Loan, other than a Specially Serviced Mortgage Loan unless all related fees release or substitute any collateral securing an outstanding Mortgage Loan or Xxxxxxxx Fashion Center Companion Loan except as provided in Sections 3.08 and expenses are paid by the Borrower;
(vii) the applicable Special Servicer shall not permit (or, in the case of a Performing Serviced Mortgage Loan, consent to the applicable Master Servicer’s3.09
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
